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Unlocking IP 2009 Conference
"National and Global Dimensions of the Public Domain"


DAY 1 - Thursday 16 April

DAY 2 – Friday 17 April

The linked documents are in PDF format, which requires a PDF reader such as Acrobat or OS X Preview etc. They are also linked from the program page. They may include indications of particular licence application to that document.

DAY 1 – Thursday 16 April 2009

1. The Magic Pudding: Australia's Public Domain

Graham Greenleaf (Faculty of Law, University of NSW) -
'National and International Dimensions of the Public Domain'
[abstract] [slides] [paper]

This paper starts with a broad approach to 'public rights' in copyright works as an expansive definition of copyright's public domain. It then asks which aspects of a country's copyright public domain can be considered to be 'global' (ie largely the same from one country to the next), which aspects are 'national' (ie largely determined by factors that differ from one country to the next), and why. Using Australia's copyright public domain as an example, consideration is then given to why these differences might matter, and how law reform which considered Australia's public domain as a whole would be valuable.

2A. Surveying the Commons

Ben Bildstein (Faculty of Law, University of NSW) -
‘The unit of the commons: a discussion of metrics for online commons quantification’
[abstract] [slides]

This paper addresses the current concept of online commons quantification, and the way that this takes for granted that what we are counting is URLs (web addresses) of commons documents. That is, the assumption is that any image file, any HTML file, any sound file, etc., constitutes as much of the commons as any other. This assumption poses a problem: at the least, the results are not very useful. At worst, multiple URLs may map to the same actual file, so if we count URLs of licensed works we may in fact be counting some files multiple times.

One paradigm that can be used to conceptualise the problem is that of a distinct work in copyright law. It may be possible to determine where the boundaries between such copyright works are, and hence quantify the online commons on that basis. The dual difficulties with this paradigm are: what constitutes a single copyright work on the Web, from a legal perspective? and, how can this definition be implemented in a computer system, so that concrete data can be gathered?

This paper will address the issues relating to metrics, aiming to get a handle on how significant they might be, and provide examples of where this would happen in the Australian web space. Many alternative metrics for quantification will be discussed, and, where practical, explored experimentally.

Jeremy Malcolm (Consumers International [Asia Pacific]) -
‘Country Watch Lists as Global Norm Setting Instruments on Copyright Flexibilities’
[abstract] [slides] [paper]

In this paper I will introduce the Consumers International IP Watch List, a survey that examines the intellectual property (IP) laws and enforcement practices of a range of countries, from the perspective of the world's only global consumer advocacy body, Consumers International (CI).

The intent of this IP Watch List is to assess how well the copyright laws and enforcement policies of the surveyed countries support the interests of consumers, by allowing them fair access to the fruits of their society's culture and science. The results of the survey will illustrate that strong copyright laws, enforced rigidly, can seriously harm the interests of consumers.

This survey finds that what is more important than a strong copyright system, is a fair copyright system; one that balances the economic interests of rights holders with the compelling economic, social and cultural interests of consumers. As will be seen, such systems can be found in amongst countries that one might not expect.

Delia Browne (Ministerial Council on Employment, Education, Training and Youth, NSW) -
‘The Open Education Revolution: Sharing Nicely’
[abstract] [slides] [paper]

Historically educators access to educational resources was limited and such educational resources were costly to create and disseminate. The Internet now provides access to a vast and expanding pool of educational resources and Web 2.0 and 3.0 technologies greatly facilitate the abilities of educators and students to create and modify educational resource and to share these with world using the internet. The goal of the OER movement is to respond to the needs of educators and students for open adaptable resources and emphasises the transformative possibilities of digitally created and distributed resources. In a nutshell OER is about creating repositories of material which are free to:

    • Access
    • Use
    • Modify
    • Share

The movement in Australia is better described as free for education. This is where material is made available to access and copy but not necessarily to modify and share with the entire world. That said, there is a groundswell of Free for Education and OER activity occurring and growing in Australia. But there are some barriers that need to overcome before we can start creating material.

Delia will briefly provide an overview of the beginnings and the global spread of OER and showcase some great Free For Education and OER initiatives. She will examine the current challenges of OER as well as some of the benefits of OER and identify immediate practical pathways to overcome these challenges.

2B. Learning from Histories and Cultures

Ben Atkinson (ARC Centre of Excellence for Creative Industries and Innovation, Queensland University of Technology) -
‘The History of Privatisation and the Public Domain’
[abstract] [slides] [paper]

The story of IPR is the story of privatisation. The public domain is defined by privatisation. Privatisation is a word coined in relatively recent times to describe the transfer of public assets into private hands. Public assets constitute part of the public domain. The Romans, who created the principles and concepts that underlie our property law, privatised the land, and many of the inhabitants, of the territories they conquered and turned into provinces. They established in law that land or things – realty or chattels – must be conquered, annexed, possessed in order to create property.

In the history of privatisation and the public domain, there is only one winner, and it is not the public domain. This fact is writ large in the history of IP law. The public domain awaits annexation by the conquerors at its borders, but it can be saved, not by defence but constructive engagement. In 452, when Attila the Hun, one of the most bloodthirsty privatisers in history, approached Rome with his conquering hordes, Pope Leo the Great met him and persuaded him to turn back. So too, some IP owners can be persuaded to turn back. As Creative Commons has shown, some are willing to make material available for free.

Catherine Bond (Faculty of Law, University of NSW) –
‘The Unique Flavours of Australia’s Public Domain: A View from History’
[abstract] [slides]

This paper first briefly maps the statutory development of copyright law in Australia, before proceeding to consider five ‘unique flavours’ of Australia’s public domain during this development:

1) a reduced length of copyright protection for paintings, drawings and photographs in the colonies;
2) exclusive protection, for a limited period, for information in telegrams received beyond the colonies
3) no copyright in ‘blasphemous, indecent, seditious, or libellous’ works
4) lecture copyright
5) perpetual copyright for unpublished works

The paper concludes with the impact that these unique features had and continue to have on Australia’s public domain and copyright law today.

Louise Buckingham (Faculty of Law, University of NSW) –
‘Traditional Knowledge and the Public Domain: an overview’
[abstract] [paper]

This paper will review some of the recent literature about the relationship between Traditional Knowledge and the Public Domain for the purpose of examining the history, development and present location of this “new” discourse.

The apparent incongruity and tension between ideas underlying the public domain, and those underpinning the notion of traditional knowledge will then be examined.

Central questions that arise include: who has framed the parameters of these discussions, debates and discourses, and why? What is the significance of the terminology used? What role have international legal institutions and law played in shaping the contested space?

3A. Making Exceptions 1

Ben Atkinson (ARC Centre of Excellence for Creative Industries and Innovation, Queensland University of Technology) -
' Three-step test and Australia: right to remuneration and the concept of sterile copyright'
[abstract] [slides] [paper]

Consideration of the three-step test in the Australian context must necessarily take account of international developments. Relevantly, in 2008, the International Association for the Advancement of Teaching and Research in Intellectual Property, under the auspices of the Max Planck Institute, issued a declaration asking for ‘a balanced interpretation of the three-step test in copyright law.’

I propose, in the language of the Max Planck declaration, a ‘balanced interpretation of the three-step test’ that relies on analysis of ‘objectives and purposes’. My premise is that traditional analysis of exceptions is flawed by the implicit presumption that the exclusive rights confer entitlement to remuneration. However, if it is shown that copyright owners cannot (except in the case of statutory licences) claim a right to remuneration, but must instead bargain for reward, it can be seen that the scope of the exclusive rights, as historically intended, is strictly economic. That is, they were designed to enable owners to strike commercial bargains in a market. Legislators did not intend uses outside the penumbra of the market to be subject to restraint.

Sophia Christou (Cyberspace Law and Policy Centre, Faculty of Law, University of NSW) -
‘User-generated content and the future of fair dealing’
[abstract] [slides]

In 2005, the Australian Government conducted a review of copyright legislation and the exception of fair dealing. Following this review, the framework of the existing fair dealing exemptions was retained, with the addition of a new exception of fair dealing for the purpose of parody or satire. Debate on the topic was posited within the traditional framework of commercial producer and consumer. The surge of user-generated digital content and the novel issues surrounding such content only emerged in the periphery. This paper will examine the potential scope of fair dealing exemptions applied to user-generated digital content. Emphasis is placed on the ‘grey zone’ of user-generated content: those works that push the boundaries of copyright law into unchartered territory. As parody and satire constitute a novel area in Australian copyright law, less restrained by prior court decisions, the paper places emphasis on fair uses within user-generated content for these purposes.

Lin Xie (Faculty of Law, The Chinese University of Hong Kong) -
‘Fair Use or Fair Dealing? A Proposed Approach towards Digital Intermediary Copying in Australia’
[abstract] [slides] [paper]

This paper will use Google Book Search as a framework for discussing whether the fair dealing exceptions in Australia will have a desirable result on intermediary or informational use, and propose an affirmative defense of fair use or fair dealing which will benefit the digital environment in Australia. The narrow scope of fair dealing exceptions in Australia, newly amended in 2006, embraced a range of specific exceptions. However, some scholars argue that a more flexible fair use exception is still worth re-considering. Both the United Kingdom and Australia share general similarity in fair dealing due to their common law history, thus, the UK copyright will also be taken into account in this discussion.

This paper will explore the benefits and defects of the US approach towards Google Book Search and discuss the effects which the copyright law in Australia will have on intermediary or informational use such as digital library projects. The paper will then address how Australian copyright law can accommodate Google Book Search within its existing scheme of exceptions, taking into account the Australia-US FTA and other international treaties, and will propose some possible changes in the fair dealing defense in Australian copyright law. From this particular digital perspective, this paper seeks to offer some reflections on whether it is beneficial for the copyright law in Australia to adopt a more flexible fair use defense which is similar to the US.

Dilan Thampapillai (School of Law, Victoria University) –
‘Towards an Innovation Exception? Creating New Rules for an Innovation Society’

Australian copyright law does not have a safeguard akin to the US ‘safe harbour’ principle. In the case of Sony Corporation v Universal, the US Supreme Court created a rule that provided that where a device or product is capable of substantial non-infringing uses secondary liability for copyright infringement will not be imposed. What is remarkable is that 25 years after the Sony decision, Australian copyright law has nothing within its statute that resembles that rule. Furthermore, after the AUSFTA the Australian Copyright Act took on many aspects of the US Copyright Act. Australia even went further than the United States in its protection of owner’s rights. But in this crucial aspect, where innovation is concerned, the two jurisdictions diverge.

In this article I want to make an argument for an innovation exception to be included into the Australian Copyright Act. What I am concerned with is creating the legal space for technology innovators, those who create products that may enable copyright infringement, but which also have legitimate uses, to operate and to avoid liability.

3B. Coexistence of Open Content and Compulsory Licences

Elliott Bledsoe (Creative Commons Australia) -
‘Still No Good: APRA’s non-commercial licensing amendments and what they mean for Creative Commons users’

Historically, APRA members have not been able to use Creative Commons licences. This is because, in Australia (and New Zealand) when a musician becomes a member of the Australasian Performing Right Association Limited (APRA) they give up control of part of their music. Like many collecting societies around the world, APRA requires a full assignment of the member’s performing rights of all past, present and future works. Assigning the rights to the collecting society allows more efficient administration and enforcement of the royalty collection process, increasing the ease and utility of the system for APRA members and users alike. However, the assignment of rights to the collecting society also has disadvantages. In particular, it presents compatibility issues with online business and distribution models.

To address this licensing shortfall in the APRA model, in late 2008 APRA introduced a “Noncommercial Licence Back” option for worldwide, noncommercial licensing of musical works online. APRA has had two similar mechanisms for regaining control of works in the APRA repertoire—“opt out” and “license back”— for some time. However, limitations in the terms of these mechanisms meant that musicians still had no (legal) ability to communicate their musical works online. This paper will examine the limitations of the new Noncommercial Licence Back, explore what is being done to address the incompatibility of the Creative Commons and performing right society systems internationally and will propose alternatives to the Licence Back that could accommodate Creative Commons while preserving musician’s ability to continue to access the benefits of APRA.

Delia Browne (Ministerial Council on Employment, Education, Training and Youth, NSW) -
‘Educational use and the Internet – does Australian copyright law work in the web environment?’
[abstract] [slides][paper]

Australia is undergoing a period of radical review of its education, innovation and the digital economy policies.

This paper poses the question: are the Copyright Act's statutory educational use licences appropriate in the online world or is there another way?

Australia's unique statutory educational licences were created initially to deal with educational copying in an analogue world of photocopying books and videotaping television shows off air and aimed to balance the public interest in ensuring a free flow of information in education and the private economic interests of copyright owner.

In 2000, the statutory educational licences were made technology neutral to ensure that electronic and digital copying and communication of literary and artistic works and television and radio broadcasts were also covered. Publishers and Creators of books, CD ROMs, eBooks would now receive copyright fees for educational use of their material. However the licence also extends to the millions of website owners in the world who put material on their websites for free public consumption with no expectation of receiving remuneration under a compulsory licence scheme in Australia.

No other country in the world requires educational institutions to pay to use for educational purposes material made available from publicly available websites.

  • The following questions are raised:
  • Are the statutory educational licence schemes out of "whack" when applied to the internet?
  • Should educational institutions pay for material made publicly available on the internet or educational institutions be able to freely use publicly available information on websites for non commercial educational purposes?
  • How does the current statutory education licence schemes impact on the Governments Digital Education Revolution and Venturous Australia innovation and the Future Digital Economy Agendas?
  • Is another way that the economic needs of those website owners who want remuneration can be addressed?

George Tian (Faculty of Law, University of Technology, Sydney) -
'China's IP Abuse Rule: Another approach to protecting the public domain'
[abstract] [slides] [paper]

This paper will focus on the recent development of the Chinese IP abuse legislation and its potential impact on IP protection and technology transfer in China. Firstly, a brief overview of the TRIPS requirement concerning IPR abuse and technology transfer, and the recent development of IP abuse laws at domestic levels, particularly in the US and the EC, will be given. The paper will then examine the recent development of the Chinese laws regarding technology transfer and IP abuse prevention, including both the recently enacted Anti-Monopoly Law 2008 (AML) and other regulations. Specifically, the ways in which IP-related provisions in the Chinese Anti-monopoly law 2008 balance the interests of different stakeholders, and facilitate technology transfer from developed nations to developing nations, will be discussed. Recent antitrust lawsuits, including the antimonopoly investigation against Microsoft in China, will also been examined. Finally, this paper will argue that rules preventing IP abuse and antitrust laws may serve as a supplement to current public rights measures (such as fair use and fair dealing doctrine and the open source movement), to enhance the public domain, consumer interests and fair competition.

4A. Making Exceptions 2: Cultural Institutions

Jessica Coates (Creative Commons Clinic, Queensland University of Technology) –
'Making the most of what we’ve got – why we need an Australian Creative Archive’
[abstract] [slides] [paper]

The internet, digital recording devices and the ready availability of content production software have together drastically changed the creative landscape, making it easy for anyone, from every-day bedroom experimenters to professionals, to find and reuse content. As a result, linear models of knowledge and cultural production and commercialisation are rapidly being supplanted by more distributed, collaborative, user-generated and open networking models. In this context the ability to create, access and reuse digital content is paramount. Remixing, recycling and online distribution are integral to the digital environment’s creative capacity, and to the economic, educational and cultural benefits that it brings.

Yet Australians have great difficulty gaining access to quality online content about their own culture and history. Unlike countries such as the US and UK, which have led the digital revolution and dominate online content, it is very difficult to locate Australian-specific content online that can be legally and safely viewed and re-used. This paper will follow the Venturous Australia recommendations to put forward an argument for increasing user rights to access and, most importantly, reuse government owned and public domain content held within Australia’s creative archives. Drawing on national and international examples, it will examine the limitations of the current mechanisms for accessing Australian content online and the benefits that could be gained in the fields of education, the creative industries and business innovation from allowing sharing, repurposing, remixing and reinterpretation of our national collections.

Laura Simes (Australian Digital Alliance; Australian Libraries Copyright Committee) -
‘The flexible dealing provision for Australia's cultural and educational institutions: What's it all about? How are institutions using it?’
[abstract] [slides] [paper]

In December 2006 a new copyright exception, section 200AB, was added to the Copyright Act 1968 (Cth). This exception draws on the language of international intellectual property treaties, incorporating the "three-step test", and in addition has also been described as intended to operate like the US "fair use" doctrine, allowing the use of copyright materials for a range of socially beneficial purposes.

Section 200AB offers the possibility of increased flexibility in how libraries, galleries, archives and educational institutions make use of copyright materials. Following on from copyright training sessions run by the Australian Libraries Copyright Committee (ALCC), a number of examples of how s200AB might be of use to libraries, archives, galleries and educational institutions have been collected together to form the bulk of the Flexible Dealing Handbook produced by the ALCC and Australian Digital Alliance.

This paper will examine the history and context of section 200AB, and will go on to examine the practical utility of this provision with some illustrative case studies.

Sarah Waladan (Minter Ellison Lawyers, Sydney) –
‘Access to Educational and Cultural materials following the 2006 Amendments: Are the reforms achieving their intended goals?’
[abstract] [slides] [paper]

In 2006 the Australian Government of the day passed a number of amendments to the Copyright Act 1968. Amongst these amendments were various new copyright exceptions for the benefit of libraries, educational and cultural institutions which were targeted towards the following key purposes:

  • to allow copyright material to be used for socially useful purposes; and
  • to update Australia's copyright laws and to ensure that the law is better equipped to keep pace with developments in technology and consequently rapidly changing consumer behaviour.

This paper will consider whether, two years since the passage of these amendments, they are achieving their goals. In looking at this I will explore two key issues:

  • how the provisions are being interpreted and used in institutions; and
  • whether the ability to contract out of the exceptions and current anti-circumvention legislation impact on the usefulness of the new copyright exceptions.

Finally, I will conclude by commenting on the extent to which the exceptions are operating to fulfil the goals and aims of Government outlined in the explanatory memorandum to the Copyright Amendment Bill 2006. To the extent that the amendments are not meeting these goals, or that there is a perceived 'problem' with the amendments and/or their implementation, I would like to consider some approaches to a solution moving forward. Should a solution involve further legislative amendments (such as, for example, an amendment to introduce fair use or amendments to prevent contracting out of the copyright exceptions) or a change in institutional practices or both?

4B. Re-use of Government Works

David Vaile (Cyberspace Law and Policy Centre, Faculty of Law, University of NSW) –
‘Yes We Scan: US government access policies and the revived attempt to 'Reboot.Gov'’
[abstract] [slides]

Despite being the home of Creative Commons and other 21stC advances for the public domain, a history of disastrous US government 'commercial' decisions in the 20th Century reversed the promise of much earlier initiatives such as the Government Printing Office, and resulted in a range of key information being lost to public access, or left languishing for want of resources. Compared to the global successes of e.g. the Free Access to Law movement (assisted by AustLII), public access to legislation, cases, and regulatory material has been stunted; and as in other domains in the diverse US system, there is a patchwork of progress or regression in related fields of public information such as standards, safety, and skills for public information creation. However with the digital-friendly Obama regime in Washington, there is now a renewed push by long time activists ( and a coalition of supporters to break the paralysis and leap-frog to the front of the field. This paper looks at the early promise and past failures, and focuses on the key elements of the new proposals, comparing them with the scope, resourcing and status of Australian equivalents.

Anne Fitzgerald (Faculty of Law, Queensland University of Technology) and Neale Hooper (Queensland Crown Law Office; Faculty of Law, Queensland University of Technology) -
‘Re-use of Government Works’

This paper will discuss developments in providing access to public sector information (PSI) in Australia, in the context of developments in international policy and practice and recent Australian inquiries (including the 2008 Review of the National Innovation System and the Victorian Parliamentary inquiry). As well as discussing emerging principles for reuse of PSI, we will consider developments in the licensing of PSI, including the kind of restrictions traditionally imposed on reuse, and recent work on licensing models that support reuse. In particular, the paper will consider the use of Creative Commons (CC) licences to support reuse of government materials. Case studies will include the Queensland Government’s Government Information Licensing Framework (GILF) Project, the Australian Bureau of Statistics’ adoption of CC licences for statistical data downloaded from the ABS website, and recommendations of the UK Power of Information Taskforce.

Waltraut Ritter (Hong Kong Knowledge Management Forum) –
'Developing Public Policies for Re-use of Government Information: Starting the Public Discourse in Hong Kong'
[abstract] [slides] [paper]

The OECD recommendation on “Enhanced Access and More Effective Use of Public Information” has wide-ranching implications for member states, but is also relevant for the information policies in highly developed non-member states. In this paper, the current status of PSI policies and activities in Hong Kong will be discussed.

In Hong Kong, the government has a comprehensive information strategy relating to information infrastructure (Digital21 Strategy), which was first documented in 1998. This blueprint for Hong Kong’s ICT development is updated on a regular basis to account for technological and socio-economic changes, however, PSI is not (yet) part of the strategy. Many countries still focus too much on the technical infrastructure and less on the content, usage and economic value that can be created from re-use of government based on an advanced information infrastructure. Since the policy-making process in Hong Kong is at an early stage, the paper will also address the policy-making challenges drawing on experiences of countries that already have PSI policies in place.

5A. Open Source Software and Open Standards

Anne Fitzgerald (Faculty of Law, Queensland University of Technology) and Kylie Pappalardo (OAK Law Project, Faculty of Law, Queensland University of Technology) –
‘Moving Towards Open Standards’
[abstract] [slides]

The regulatory framework for the development and adoption of standards is complex and poorly understood. Intellectual property (IP) issues arise, for example where patented technologies are included in a standard or a standards setting organisation (SSO) claims (and enforces) copyright in the documented specifications of its standards. While there is increasing interest in open standards, there is no accepted definition of what an “open” standard is. Irrespective of the degree of openness of a standard, failure to understand and manage these IP issues will impede the development and adoption of open standards. This paper will consider some of the IP issues that arise in relation to standards and how they can be managed to support the development and adoption of open standards. As part of this presentation, the concepts of open source and open systems, and their relationship to open standards, will also be considered.

Raena Lea Shannon (Frankel Lawyers, Sydney) - 'In the middle of a Cloud I call your name -
Open Standards in Social Networking'

When we excavate the stack out of which Social Networking sites have evolved we see that it is Open Standards, TCP/IP,HTML.XHTML, and W3C standards that have been the enablers. Can Facebook and Myspace and the like stay proprietary and survive, or are the forces of user accessibility and portability compelling them towards Open Standards (such as XMPP)? What are the implications for this for IP generally in the always on-line age?

Brianna Laugher (President, Wikimedia Australia) and Liam Wyatt (Vice President, Wikimedia Australia) -
‘Wikimedia in copyright / Copyright in Wikimedia’
[abstract] [slides] [video]

The Wikimedia Foundation's projects are some of the largest collaborative endeavours ever undertaken and have become enormously popular due to their content - most especially Wikipedia, the free encyclopedia, and Wikimedia Commons, the free media repository. Along the way they have become standard bearers for the free-culture movement and are beginning to affect copyright law itself both in theory and in practice. This presentation will discuss four examples of how the projects interact with copyright in unforeseen ways:

1) How the Wikimedia Commons community reconciles variations between many national law codes to create a single repository of public domain content;

2) How the phrase "or any later version", and some serious behind-the-scenes and community wrangling, is allowing Wikipedia to make the unprecedented step of switching from one 'viral license' (GNU Free Documentation License) to another (Creative Commons Attribution-ShareAlike);

3) How the theory of derivative works is underpinned by the practical requirement for database dumps; and

4) Why a dedicatedly non-commercial organisation refuses to accept 'non-commercial' licensed content.

Richard Landauer,
'’s experience with Open-source and content - a tiny case study'


Launch of 2009 Consumers International IP Watchlist [slides] [about]

Jeremy Malcolm, Consumers International (Asia Pacific)

Gordon Renouf (CHOICE)

DAY 2 – Friday 17 April

6. Business Models Integrating Public Rights

Roger Clarke (Xamax Consultancy) and Danny A Kingsley
‘Open Access to Journal Content as a Case Study in Unlocking IP’
[abstract] [slides][paper]

The Internet has brought with it both means to disseminate and access content, and an enhanced expectation that content will generally be readily accessible. This has threatened entrenched for-profit activities, which have long prospered on closed, proprietary approaches to publishing, facilitated by anti-consumer provisions in copyright laws. The ePrints and Open Access (OA) movements have been complemented by the emergence of electronic repositories in which authors can deposit copies of their works.

The accessibility of refereed papers published in journals represents a litmus test of the extent to which openness is being achieved in the face of the power of corporations whose business model is dependent on the exploitation of intellectual property (IP). A specification of the requirements for 'Unlocking IP' in refereed papers is presented and applied, leading to the conclusion that a great deal of progress appears to have been made. The copyright arrangements applied by most publishers enable authors to self-deposit PrePrints of their papers on their own web-sites and in open repositories; and in many cases authors can also self-deposit the PostPrint, i.e. the author's copy of the final version.

The theoretical success of the OA, ePrints and repositories movements has not, or at least not yet, resulted in success in practice. This is because only a small proportion of papers are actually self-deposited, and a large proportion of refereed papers continue to be accessible only through highly-expensive subscriptions to journals and journal-collections controlled by for-profit publishers. The Unlocking of IP in refereed papers is therefore still very much a work-in-progress. Moreover, the gains may be ceded back to the for-profit publishing industry, unless concerted efforts are made within academe.

Susan Murray-Smith (Digital Initiatives & Sydney University Press) -
'Sydney University Press - a model for combining open access with commercial sales'

Sydney University Press was restarted in 2003 to provide print-on-demand books from the University Library’s digital collections. Since 2005, it has also been publishing new research titles. Through its co-location with the University’s repository, it has begun to explore Open Access in conjunction with commercial publication. A number of SUP titles are freely available chapter-by-chapter in the University repository, with a link to purchase the printed volume. This paper explores some of the issues around scholarly publishing in the digital age: exposure, expertise and reputation vs. commercial imperatives; digital production and flexible uses, and the role of the scholarly publisher.

James Dalziel (Macquarie E-Learning Centre of Excellence, Macquarie University, Sydney) –
‘Successes and Challenges for open IP business models’

While open approaches to software and content need not be revenue free, open business models are still evolving, and many lessons about their benefits and challenges are only starting to become clear. This presentation will compare traditional and open business models for educational software and content based on the presenter's real world experience leading both types of businesses during the past deacade. It will also discuss similar examples from around the world, and seek to draw out key lessons for open software and open content business models in relation to innovation, scale, sustainability and investment.

7A. Orphan Works, Legal Deposit and Locating Missing Rights Holders

Abi Paramaguru (Cyberspace Law and Policy Centre, Faculty of Law, University of NSW) and Catherine Bond (Faculty of Law, University of NSW) –
‘Legally Blogged: Recording Australia’s (Online) Cultural Heritage’
[abstract] [slides]

In 2007 the Government commenced a review into the feasibility of extending the legal deposit scheme to include audiovisual and electronic material. Submissions closed in May 2008 and we are still awaiting the findings from this review. In this paper we briefly examine existing legal deposit provisions and the proposed areas of extension. We use the Unlocking IP research staff blog, aptly named, ‘The House of Commons’ as a case study to examine the fate of online materials of this nature in a potential extended deposit scheme. Discussion will include (a) the relationship between legal deposit and the public domain (b) the potential scope of an extended legal deposit scheme and (c) legal deposit, online materials and the difficulty of distinguishing the culturally significant from the ‘riffe raffe’.

Libby Baulch (Australian Copyright Council)

[ - ]

Sally McCausland (SBS) –
‘Googling the archives – ideas from the Google Books Settlement on orphan works and other clearance problems with putting archives online’
[abstract] [slides][paper]

The Google Books Settlement is the provisional settlement, reached in late 2008, of a copyright infringement class action brought against Google by the American Authors Guild and the Association of American Publishers. The case concerned the legality of Google’s “Library Project” through which, in partnership with various US libraries, Google digitised vast quantities of books without copyright permission and made searchable snippets of them available online. Claiming that most of the copyright books it digitised were out of print and not otherwise widely accessible, Google famously defended itself from claims of copyright infringement by citing “fair use” under US Copyright law.

While some observers have criticised the settlement for its essentially commercial nature and in particular, its potential anti-competitive effects, its undeniable effect is to increase public and academic online access to in copyright, out of print books. In this sense it is a rare breakthrough for online access to copyright archival material. This paper considers whether this model, or one very roughly based on it, could be applied to better facilitate public online access to other forms of cultural archival material such as broadcast archives. In particular, it considers whether new forms of statutory licensing could be introduced along the lines of an opt-out scheme.

7B. Public Rights in Publicly-Funded Research

Anne Fitzgerald (Faculty of Law, Queensland University of Technology) –
‘Public Rights in Publicly-Funded Research’
[abstract] [slides]

This presentation will examine the various means adopted in Australia and internationally to establish rights to access and reuse publicly funded research outputs (whether in the form data or publications). As well as discussing principles for access and reuse (as described in declarations and resolutions of international bodies and in legislation), we will consider how the results of publicly funded research can be managed to give effect to access and reuse requirements. A focus of this paper will be the management of rights in research data to permit efficient and effective reuse by other researchers. This will involve a consideration of the areas of law that impact upon data access and reuse, including copyright, privacy, confidentiality, patent and contract.

Luigi Palombi (Centre for the Governance of Knowledge and Development, The Australian National University) -
'The Role of Patent Law in Regulating Access to Medicines'

Even with the uniform patent protection and enforcement provided by TRIPS and the WTO, there is now a growing body of evidence that both the rate of drug innovation and pharmaceutical company profits are falling. History shows that patents are not the promoters of innovation that the pharmaceutical industry would like us to believe. The overwhelming evidence appears to confirm that, rather than improving access to medicines, the patent system actually encourages research and investment into medicines that produce the greatest profit for the least cost – not necessarily medicines that will alleviate human suffering, especially in developing countries.

Call for Papers

The Conference included both invited and submitted presentations. We invited proposals for papers relevant to the theme of the Conference, particularly those relevant to one of the possible Sessions listed on the program page. Speakers were required to submit a short paper (approximately 10 pages), for distribution to conference delegates.

Selected papers from this Conference will be published in a special issue of SCRIPTed (University of Edinburgh).

Selected papers from this and previous Conferences, and other work arising from the Project will also be published in book form.

Revised submissions should be made electronically to Sophia Christou,

The University of New South Wales   UNSW Cyberspace Law and Policy Centre