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Unlocking IP 2009 presentation – Elliott Bledsoe (Creative Commons Australia and QUT) – Still No Good: APRA’s non-commercial licensing amendments and

  • APRA (Australasian Performing Right Association) takes full assignment of all past, present and future performing rights
  • not compatible with CC licensing (there is assignment back option or non exclusive licence for a specific purpose option, but these are not really helpful for CC)
  • so…

APRA has offered the non commercial licence back –

  • right to sub-licence communication right for non commercial purposes
  • no consideration or financial incentive
  • no direct or indirect financial gain on behalf of sub-licensee
  • sub-licensee is a not for profit entity
  • entity does not receive public or institutional funding

What is consideration?

  • Consideration is broad at law
  • should be read with “financial incentive” to limit?
  • But use or word “or” (“consideration or financial incentive”) suggests not
  • very wide

What is a not for profit entity?

  • Synonymous with non-profit
  • tax department – activities or entities where primary purpose not directed towards commercial advantage
  • entity? – under Corporations Act can be individual, partnership, trust etc.

Commercial advantage?

  • Who is making gain?
  • What about content exhibition – MySpace; lastfm.com etc.

Results?

  • Many things ruled out
  • members probably want to make use of online platforms
  • but probably not within scope of licence back
  • members may not understand this
  • Only grants communication online right
  • Rules out CC
  • because CC is a broad grant for other rights beyond communication
  • and CC applies to any use – online or offline

So CC still not available to APRA members

But at least APRA is trying. Hope for more progress in future.

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Unlocking IP 2009 presentation – Louise Buckingham (Faculty of Law, UNSW) – Traditional Knowledge and the Public Domain: an overview

In a conference that was largely celebrating the notion of the public domain, Louise had a different perspective regarding how these notions affect traditional owners. I found her talk very interesting, because it highlighted the areas in which we must tread carefully. With our work with Creative Commons Australia, we are always careful to stress that CC is a choice only for those creators who want to share their work for free – it will not be appropriate for everyone. The same is true when we talk of the public domain – we should keep in mind that where indigenous culture is concerned, openness is not always the primary concern.

My notes:

  • The notion of the public domain is reified and exulted
  • In theory, it is important for democracy
  • Connotations of openness and freedom and undeniably appealing
  • But we when consider the intersection with tradition rights, it is problematic
  • The Australia academic environment is wary of examining how traditional forms of expression are affected detrimentally by this area
  • The appeal of the public domain has gained popularity on a global scale, but for indigenous people the issues are local
  • If we ignore there concerns, we run the risk of falling into imperialistm and colonialism
  • There is lots of talk about how traditional cultural expression does not fit within western copyright regimes
  • But not much talk about how notions of the public domain can act as another way to disempower indigenous people
  • Academics who have written in this area – Cathy Barry; Jane Anderson; others – highlight the cultural particularity of notions of the public domain
  • In 2000, UK and Australian governments agreed (after long negotiations) that traditional works should be repatriated to their traditional owners; but this was contrary to the practice of about 30 large museums and galleries at the time and they were able to prevent repatriation on the basis that this was public knowledge
  • Conclusions (tentative):

– Public domain is inherently global in its idealised form
– Protection for traditional knowledge must be local
– Currently dealt with at a global level, which only increases tension
– Public domain can be a domain of exclusivity and exclusion, as well as one of “openness” etc.
– It can legitimise the process of exclusion, “othering”, discrimination against indigenous people.

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Unlocking IP 2009 Presentation – Graham Greenleaf (Faculty of Law, UNSW) – The Magic Pudding: Australia’s Public Domain

The conference kicked off with a plenary by Professor Graham Greenleaf, who leads the research team at the of Centre for Cyberspace Law and Policy at UNSW.

I won’t summarise everything from his presentation here, but in short his main point was that “the Australian legal environment is relatively inhospitable to the public domain”.

Graham uses the term “public domain” in a wide sense, to encompass not only material that is completely free of copyright protection, but also material that is openly licensed and other similar categories of materials that are free for reuse.

Graham examined 10 areas in which we can improve Australia’s public domain:

1. Scope for broader exceptions

  • There are issues surrounding the 3 step test under the Berne Convention
  • Would a fair use exception give more balance?

Other issues that need copyright review:

  • Should contracts override exceptions to copyright?
  • When can we rely on implied licences – CAL v NSW shows that the law is too narrow
  • Does liability for authorisation extend too far?

2. Legal deposit’s role in innovation

  • Examining the significance of the role of online repositories

3. Finding missing rights holders

  • Orphan works
  • How to balance innovation and author’s interests
  • US copyright office recommends a statutory licence to use, after a diligent search and subject to contingent payments for use (if author is located) – this sounds sensible

4. Enabling open content licensing

5. Maximising the value of open source software to Australia

6. Moving towards open standards

7. Coexistence of collecting societies and public rights

  • Are collecting societies making it easy enough for their members to use open content licences when they wish to?
  • Are their practices too restrictive?
  • Need to examine whether the public ends up paying collecting societies for works that are in the public domain.

8. Reuseable government works

  • Currently no consistent policies on reuse of government works
  • Australia is becoming an international rarity in its restrictiveness
  • Should there be a seal for reusable government work (to communicate which government works are available for reuse)?

9. Public rights in publicly funded research

  • Do universities publishing such research outputs in repositories need some ‘safe harbour’ protections?
  • So if copyright infringement inadvertently occurs, steps can be made to remedy this without attracting liability first
  • Should this extend to part research outputs as well?
  • Should it extend to patent rights?

10. Indigenous culture’s relationship to the public domain

Where to from here?

  • An approach based on both principles and compromise
  • copyright today is equally about respect for authors rights and the public’s rights
  • public rights need separate articulation and representation
  • a peak organisation for the copyright public domain
  • a charter of public rights in copyright
  • A public rights focused law reform review of the Copyright Act
  • Positive strategies and public messages [for a peak body to adopt]
  • CC’s ‘some rights reserved’ is a good slogan
  • Albert the magic pudding as the mascot for Australia’s public domain – the “cut-n-come-again” pudding

Comments from Professor Brian Fitzgerald (QUT):

  • There is an evolution of copyright law from a control paradigm to an access paradigm
  • This is what occurred in the Google Book Search settlement – only the first iteration of what we may see in the future
  • Not free use but not compulsory licence use – somewhere in the middle, market driven, benefit sharing model
  • Public domain is structured to some extent to the laws existing outside of copyright e.g. competition law – Sony case – HC interested in the idea that there are other property rights out there that had to be reconciled. Social habits also structure this – e.g. file sharing and peer to peer – cases currently before the courts
  • We need to get government involved as an advocate in these issues
Uncategorized

Unlocking IP 2009

Yesterday, on Thursday 16 April 2009, I attended the 2009 Unlocking IP Conference, hosted by the Cyberspace Law and Policy Centre at the University of New South Wales (UNSW). The conference is continuing today (Friday 17th), but I returned to Brisbane last night. I was hoping to live blog my notes yesterday, but unfortunately there was no internet access available. It continues to surprise me just how many conferences, in this day and age, do not provide wireless internet access to their conference delegates. In any event, I made some notes during the day, which I will be posting here. Some of these notes are brief, and they only cover a small portion of the presentations made yesterday. For most of the day the conference was divided into two streams so by necessity I missed at least half of the presentations. However, the ones I did catch were very interesting and I commend UNSW for bringing such a dynamic crowd together.

At the moment, the abstracts for all papers presented at the conference are available on the Unlocking IP website. I believe the team will also be making available slide presentations, full conference papers and podcasts sometime in the near future.

copyright, data management

Copyright protection and data compilations

Over on the Digital Curation Blog, Chris Rushbridge has an interesting post entitled, “Are research data facts and does it matter?”

I have just posted a response, which I am reproducing here:

I would like to take this opportunity to explain some of the research we have undertaken in the OAK Law Project and conclusions we have reached regarding copyright protection of data compilations in Australia. We have two primary publications addressing this area: Building the Infrastructure for Data Access and Reuse in Collaborative Research: An Analysis of the Legal Context and Practical Data Management: A Legal and Policy Guide.

s10(1) of the Australian Copyright Act 1968 defines a literary work to include a “compilation”. This is where protection for data compilations under Australian law derives from. Any data that is collected, arranged, organised and presented in a logical fashion will usually be regarded as a compilation.

Chris makes a good point that many data compilations will require a great deal of effort, analysis and creativity. In the US, creativity is a requirement before a data compilation can be protected by copyright. In Australia, creativity is not required. Only that the compilation is a result of the exercise of skill, knowledge or judgment in the arrangement of the data, or the investment of substantial labour or expense in collection the material (Desktop Marketing v Telstra).

It can often be difficult to tell whether a compilation is one that would attract copyright protection. In our work, we have tended to err on the side of caution and assume that most compilations will attract copyright protection. This is because the threshold in Australia is so low. The main case in this area, Desktop Marketing v Telstra, involved the copying of a telephone directory. A telephone directory is merely a compilation of names and numbers listed in alphabetical order. If this is a compilation that attracts copyright, then most other compilations are likely to be protected by copyright under Australian law as well.

Copyright law does not protect mere facts or information. Rather, it protects the expression of facts or information in a material form. This means that generally there would not be a problem with copying some of the basic facts contained in a compilation. For example, if I were to list the names and numbers of a small collection of my colleagues on my website, that would not usually be a problem. I have extracted the data that I need, in a fairly “random” fashion (in that I have not just copied a few pages of names and numbers in alphabetical order directly from the White Pages). I have not copied the way that the data is arranged in the telephone directory (the “expression”).

In regards to Science Commons’ decision to discontinue advocating the application of Creative Commons licences to data compilations, my understanding is that they came to this decision for two reasons:
(1) It was not always clear in the US whether the relevant compilation attracted copyright. If it did not but a person had put a CC licence on the compilation in the mistaken belief that it did, then restrictions would have been imposed on that dataset (e.g. that it could only be used non-commercially) which actually had no legal basis for being imposed; and
(2) CC licences all contain an attribution requirement and Science Commons were concerned about what they call “attribution stacking” – i.e. where a dataset is compiled from data contributed by many different researchers, it would be extremely difficult for a user to attribute all of those researchers.

At OAK Law, we still believe that CC licences can be applied to datasets in Australia because the concerns noted by Science Commons do not arise to the same degree in Australia. Firstly, we have a lower threshold test for copyright protection, meaning that copyright will more readily attach to datasets in Australia and the first problem noted by Science Commons is less likely to occur. Nevertheless, to be sure, we usually advocate that the widest CC licence – the attribution only licence – be applied to datasets. Secondly, unlike in the US, Australian copyright law includes Moral Rights, meaning that creators have to be attributed anyway, regardless of whether a CC licence is applied or not. We think there are various ways of getting around the “attribution stacking” problem – for example, a group of researchers could agree on a common way to be attributed (e.g. we could be attributed as “the OAK Law Project”), or the data could be attributed using a URL, which an interested party can visit and which can list all the contributors (and this list can be added to over time). The advantage of applying CC licences to data, in our view, is that it provides some certainty to users about what they can and cannot do with that data.

If you are interested in this issue, I would also advise reading these posts by Robin Rice and Rufus Pollock.

conference

Unlocking IP 2009 Conference – National and global dimensions of the copyright public domain

On 16 April, I will be attending the Unlocking IP 2009 Conference in Sydney, titled, “National and global dimensions of the copyright public domain”. Together with Professor Anne Fitzgerald, I will be presenting a paper on the intersection of IPR and standards. The abstract of our paper can be read on the Unlocking IP conference papers webpage.

Details of the conference are:

Unlocking IP 2009 Conference –

National and global dimensions of the copyright public domain

16-17 April 2009 – UNSW Sydney

UNSW’s Cyberspace Law and Policy Centre invites you to register now for an international conference from the ‘Unlocking IP’ ARC research project, which investigates how Australia’s digital commons, both the public domain and public rights created by open content and open software licensing, can be expanded and protected. It focuses on ‘self help’ actions within the existing statutory context, in Australia’s distinct legal and cultural context, and on comprehensiveness – we offer preliminary results from the first survey of Australia’s digital commons, with data from National Library of Australia.

The conference includes reports and case studies from the front line, where new models for sharing and trading intellectual property meet the reality of business, government and educational demands, new technological opportunities and lessons learned from implementation of licences like Creative Commons and Free for Education. Book publishing under hybrid business models at Sydney University Press, online user generated content using Wikimedia, and international initiatives like the US ‘Reboot.gov’ and China’s IP abuse rule are featured, alongside detailed analysis of emerging legal and policy directions.

A highlight of the conference will be the launch of the 2009 Consumers International IP Watch List. Arising from the CI Access to Knowledge project, the list identifies countries whose IP policies and practices are harmful to consumers. It is used as a counterbalance to the United States’ “Special 301” Report, which is an annual report highlighting countries that supposedly do not provide strong enough protection for the interests of US intellectual property owners.

The venue is Law Faculty of UNSW, Kensington Sydney, close to beaches, parks and Sydney CBD.

For details of speakers and the program: http://cyberlawcentre.org/unlocking-ip/2009/program.htm

Register at: http://cyberlawcentre.org/unlocking-ip/2009/registration.htm

copyright

Free public lecture – Professor Julie Cohen on Copyright and Creativity

On Monday 25 May 2009, QUT will host Professor Julie Cohen, Professor of Law at Georgetown University and Visiting Professor at Harvard Law School 2009.

Professor Cohen is a distinguished intellectual property and privacy law scholar, with particular focus on copyright and on the intersection of copyright and privacy rights in the networked information society. She is a co-author of Copyright in a Global Information Economy (Aspen Law & Business, 2d ed. 2006), and is a member of the Advisory Boards of the Electronic Privacy Information Center and Public Knowledge. Professor Cohen received her A.B. from Harvard University and her J.D. from the Harvard Law School, where she was a Supervising Editor of the Harvard Law Review. She is a former law clerk to Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit.

On Monday 25 May 2009 from 5:00pm-6:30pm, Professor Cohen will give a free public lecture on Copyright and Creativity. The lecture will be given in the Gibson Room (Room Z1064), Level 10, Z Block of QUT’s Gardenspoint Campus [map]. RSVPs are required by 30 April 2009 to Courtney or Collen via email at [email protected] or phone +61 7 3138 3556.

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Abuse of notice and takedown procedures

1 Comment

Yesterday, Slashdot reported:

“According to a PC World article, Google has submitted a brief to New Zealand about its proposed copyright law (section 92A). “In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.””

I find these numbers rather alarming. If accurate, they demonstrate a serious need to reconsider the true effectiveness of notice and takedown procedures. As a mechanism, these procedures were devised as a way to manage potential and threatened copyright infringement suits. But as we have seen elsewhere in the copyright environment, the ability to make assertions of infringement can be and often is abused. Right holders have been known to make assertions of copyright infringement when users were in fact acting within their fair dealing or fair use exception rights. But I find the abuse of notice and takedown procedures even more concerning because it is not just rights holders making incorrect claims of infringment.

In Australia, s202 Copyright Act 1968 provides:

Groundless threats of legal proceedings in relation to copyright infringement
(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of copyright, then, whether the person making the threats is or is not the owner of the copyright or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he or she has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or, if done, would constitute, an infringement of copyright.

My question is – is this enough to protect from groundless takedown notices? I think it would depend on the language of the notice, especially since s202(2) provides: “The mere notification of the existence of a copyright does not constitute a threat of an action or proceeding within the meaning of this section.” Not to mention that the procedure for actually exercising the rights granted by s202(1) is quite expensive. I think this is an issue that our courts and legislature should give serious consideration to. The purpose of copyright law is to facilitate innovation, not to stifle it.

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Google and Victorian Government work together on a Victorian Bushfires Events map

The Victorian Government and Google Australia have come together to develop the Victorian Bushfires Events map. This is not a map tracking the actual bushfires (see my previous post), but rather to give Victorian citizens information about where they can find events and fundraisers supporting victims of the fires. The map was announced yesterday on the Google Australia blog and on Wednesday by the Victorian Premier. From the Victorian Premier’s annoucement:

People wanting to organise or find bushfire community events in their local area will now be able to do so easily thanks to a new online map developed by Google Australia’s engineers for the Victorian Government.

Premier John Brumby said the Victorian Bushfire Events map would be a wonderful way for people to find local events where they would be able to watch Sunday’s Together for Victoria service in Melbourne but also a useful tool for future local bushfire community events.

“People unable to make it to Melbourne on Sunday will now be able to find or host an event where they can be a part of the Together for Victoria memorial service in or near their local area,” Mr Brumby said.

“The generosity of Victorians and Australians has never been more evident in the aftermath of the devastating bushfires and going forward this online tool will assist people in promoting their local fundraisers.

“It will also assist in the organisation and staging of these events – events that are humbling in their generosity and community spirit, and very much appreciated by all Victorians.”

The Victorian Bushfire Events map will allow local community groups to advertise events and fundraisers, and people to find events in their local area, not only in Victoria but across Australia and the world.

It is encouraging to see Google and the Victorian Government working together on this, but disappointing that it didnt happen sooner when locational information about the actual fires was vital.

data management

Access to Victorian fire data

Yesterday afternoon an interesting story appeared on ZDNet Australia: “Vic Govt limited Google’s bushfire map”. I encourage you to read the full post on ZDNet Australia, but in summary, the post documents Google’s trouble in gaining access to Victorian Government data about the movement of bushfires in Victoria.

According to the post, Google has been working with the Commonwealth Fire Authority, which manages fires on private lands, to overlay the Authority’s data onto Google Maps to produce a real-time map of the locations of the fires. The map also uses a colour scheme to convey the seriousness of the fires: green (safe), yellow (controlled), orange (contained) and red (ongoing).

Naturally, this map is immensely beneficial to those in Victoria and elsewhere who are attempting to track the bushfires.

However, Google has run into some problems gaining access to data to plot fires on public lands. This data is owned and controlled by the Victorian Department of Sustainability and Environment, and is covered by Crown copyright. As such, permission is required from the government before the data can be used, and for Google this permission has not been forthcoming. The result is that Google has been unable to plot this data onto their map.

As noted in the ZDNet Australia post, this is not the first time Google has had trouble accessing and using Australian government data. They were expressly denied permission from the Commonwealth Department of Health and Aging to overlay data from the National Public Toilet Map onto a Google Map.

Why is the government so unwilling to share its data? My guess is that there are two possible reasons. The first is that in some cases, the government has a misguided idea that data can be used to build online systems or services (usually these will be geospatial systems or services) which can be used to generate revenue by charging for access. The other is that the government is naturally risk-averse and would prefer to control their data as tightly as possible.

What the government is forgetting is that it is a representative of the people and the government-owned data has been collected using public funds. We, the Australian public, have paid for that data through our taxes and as such, we should have the benefit of that data. Surely it is most beneficial for the public if we can have ready access to that data in the most efficient and convenient way possible. And if that is through a Google Map, then the government should enable this. There can be no argument that in the face of tragedy such as the Victorian bushfires, the government should not hinder our ability to access as much information as possible about that tragedy. This includes the ability to easily track those bushfires via a Google Map.

Arguments have been made that as the access and use issue can be traced back to Crown copyright, then Crown copyright should be removed, as is the case in the United States where government data and publications are held to be in the public domain. I do not believe that this is the answer. Rather than remove Crown copyright completely, the government should be encouraged to release their material where possible under open licences such as the Creative Commons Attribution licence. This should be the default position, unless access to the material must be restricted due to privacy or national security concerns. The government must engage in a “push” model – where it systematically “pushes” its material out to the community – rather than a “pull” model – where members of the public must seek permission or lodge a Freedom Of Information request to access that material. Crown copyright can serve an important purpose, if only through the operation of the requirement of attribution (a requirement imposed through the Creative Commons licence, similar to moral rights), which requires that the author of a material (in this case, the government) to be attributed wherever the material is reproduced. The requirement of attribution for government copyright material can serve a two-fold purpose – (1) it allows the government to retain some control over the material it produces; and (2) it verifies to the public that the material has come from a reliable source.

Our research group at QUT has done some work on this area. See the auPSI website for more information.