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Unlocking IP 2009 Conference
"National and Global Dimensions of the Public Domain"
PAPERS
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:
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’ [abstract][paper]
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’ [abstract][paper]
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 (YesWeScan.org) 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’ [abstract]
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' [abstract]
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, OpenAustralia.org
'OpenAustralia.org’s experience with Open-source and content - a tiny case study' [slides]
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' [abstract][slides][paper]
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’ [abstract][slides]
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'
[abstract][paper]
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, s.christou@unsw.edu.au.
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