National Dimensions of the Public Domain: Creating commons-ism in one country? Presented by Philip...
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Transcript of National Dimensions of the Public Domain: Creating commons-ism in one country? Presented by Philip...
National Dimensions of the Public Domain: Creating commons-ism in one country?
Presented by Philip Chung
Graham Greenleaf, Professor of Law, UNSW; Co-Director, AustLII & CyberLPC
David Vaile, Executive Director, CyberLPC
Philip Chung, Executive Director, AustLII
Overview
Terminology for public rights in ©– Dichotomy or continuum?
What creates commons?– Legislation - Expropriation - Licensing
National Dimensions of Commons– 4 tasks in building Australia’s © commons
Public rights in copyright?
Starting point: Copyright in Australian law has always recognised public rights in works
– © law protects only a limited ‘bundle of rights’ for authors - all other uses of works are permitted to the public
– © law therefore assumes a wide range of public rights - permitted uses (eg right to lend books) and exceptions to rights (eg fair dealing rights)
– Copyright Law Review Committee argued (2001) that these exceptions to © are ‘fundamental to defining the copyright interest’
– This approach treats © as a limited monopoly, granted in the public interest in order to encourage creativity
Public rights in copyright?
‘Maximalist’ extremist view: Public rights are a historical accident, all uses should require consent
Abolitionist extremist view: Copyright is theft / unnecessary / unenforceable
Most Australian organisations and commentators are at neither extreme, and recognise the validity of both private and public interests in works
This presentation proceeds on that assumption of moderation …
Terminology for public rights
No accepted terminology yet for the public rights aspects of works which are also to some extent subject to private © interests
(1) The expanded notion of ‘public domain’– Old notion of ‘public domain’: works in which © had expired, and
which therefore had NO private rights remaining– ‘Public domain’, some now argue, should be redefined to include
all aspects of works that © does not protect – ‘Public domain’ then becomes a positive slogan for those who wish
to defend or extend the public aspects of works
Terminology for public rights
(2) ‘Creative commons’ used to describe a ‘new’ element – public rights created by voluntary licensing by © owners– Explicitly based on recognising the co-existence of public and
private rights in works (‘some rights reserved’) through a series of licences creating various limited rights
– associated with the US Creative Commons (headed by Lessig from 2001)
– Internationalised via ‘iCommons’ associates such as iCommons Australia (based at QUT)
– Little difference in philosophy and approach from other approaches to licence-based public rights
Eg AEShareNet in Australia’s TAFE sector
Terminology for public rights
(3) ‘Open content’ [open source, open standards - closely related]
– Broader definition includes all content that can be freely copied (eg Wikipedia defn.)
– Narrower definition requires content not just to be freely available, but also includes the ability to adapt and change the work (eg Openflows defn)
‘[creative] commons’, ‘public domain’ and ‘open content’ often interchangeable - terminological confusion is common
Terminological clarification?
Starting point: recognising the continuum of public and proprietary rights in works
– [full] ‘public domain’ (old sense) is at one end - ‘no rights reserved’ (even then, moral rights remain)
– In theory, full proprietary rights would be at the other end Except there is nothing there!
– Proprietary works which are subject only to the statutory public rights, are only toward the other end, but each type of work differs, as each is subject to different public rights
– In between are all works with some additional public rights created by voluntary licensing of rights to the public, but ‘some [proprietary] rights reserved’
Terminological clarification? -Some implications
There is no public/private dichotomy, just a continuum– In fact, it is a multi-dimensional continuum, because works can
vary along many different dimensions– Dimensions include exclusive rights, duration etc
Essential to recognise how flexibly terms are used– We use ‘commons’ to refer to wherever there are more public
rights than the statutory minimum - very broad Advocates for public and private rights can disagree on one
dimension while agreeing on another - ‘public domain’ or ‘commons’ issues are not all or nothing
– This is apparent from what can alter the continuum …
What creates commons?
What types of actions change the location of works on the copy-rights continuum?– (1) Legislation - changing definitions – (2) Legislation - creating compulsory licences– (3) ‘Friendly Expropriation’ + acquiescence– (4) Voluntary licensing
All of these actions can create public rights beyond the statutory minimum (commons)
What destroys commons?
What removes material otherwise in commons?– Some legislation– Some technology locks it up – Contracts can do so
(1) Legislation - changing definitions: altering the continuum
Extension of © term to 70 years– ‘term extension’ contracts public rights
Changes to the definition of ‘fair dealing’– Moves proprietary works more toward the centre
Abolition of Crown ©– Expands public rights - benefits many publishers
Should works published on Internet be presumed ‘free for education’?
– Aust. Ed. Dept (DEST) suggestion
(2) Legislation - compulsory licences: altering the continuum
New or expanded compulsory licences– Expands public rights but may profit © owners– The history of collecting societies: bitter resistance; followed by
acceptance and sustainable profit– Lessig (Free Culture): Major US innovation-based industries were
based on ‘piracy’, often followed by a compulsory licence to make them ‘legit’:
The recording industry - mechanical reproduction right Cable TV rebroadcasts - 30 years, then a compulsory licence Radio - broadcasting of sound recordings - no protection at all
(Lessig’s Free Culture (Penguin) is available free under a Creative Common (CC) licence in numerous formats)
Legislation - compulsory licences: altering the continuum
Commons require organisation– They do not occur spontaneously– Lessig’s examples also show where a commons
element has provided an organisational structure previously absent, from which all sides subsequently prosper
– Benkler’s work on commons-based modes of production explore which structures work
(3) ‘Friendly Expropriation’ + acquiescence: altering the continuum
Some de facto ‘compulsory’ licences result from general acquiescence in uses of works which might be © breaches
– Search engines copy works to make concordances; Google cache takes this further
– Google Print similarly– CommonLII re legal materials from Commonwealth
countries
‘Friendly expropriation’ can create a commons without a statutory licence
‘Friendly Expropriation’ + acquiescence: altering the continuum
Conditions for ‘Friendly Expropriation’ to succeed in creating a commons:
– The commons organises the content better – The public benefits from the service– The © position of works covered is mixed (only some
protected) and/or unclear– At least some © owners will benefit from the use being
made; few if any will suffer significantly– An opt-out mechanism is provided– Opting out is unattractive (makes © owners look mean-
spirited) so it only affects a minority
(4) Voluntary Licensing: altering the continuum
Positive acts of licensing by © owners can move works more toward the public domain end of the spectrum - ‘some rights reserved’
Examples– AESharenet licences (FfE and others)– Creative Commons licences– Open Source software licences– Public licences of Crown © works (eg NSW licences to the
public of legislation and cases)
National Dimensions of Commons
‘Unlocking IP’ - a project on building and preserving Australia’s © commons
– Linkage - Industry grant by Australian Research Council 2005-8; A$200K p/a
– 10 IP academics, 3 others, 6 industry partners based at UNSW Cyberspace Law and Policy Centre
– Will attempt a comprehensive look at the relationship between public and private rights in ©
– Main Qs: How does it make sense to talk about Australia’s public domain or commons?; What steps are needed to preserve and expand them?
4 tasks in ‘unlocking IP’
1: Analysing public rights - theory and taxonomy 2: Making public licences understandable and
consistent 3: Making works findable 4: Devising incentives to create public rights
Task 1: Analysing public rights - theory and taxonomy
Is an Australian commons theory needed?– Most commons theories (particularly Lessig’s) are from the context
of US © and constitutional law, and institutions– We need approaches free of US legal concepts: the 1st
Amendment, ‘fair use’ and maximalism– We need specific problems of Australian law accommodated
How are moral rights accommodated? How can public licensing be legally effective here?
A taxonomy of public rights – How does one licence differ from another?– How do various commons licences relate to collecting society and
publishers’ licences?
Task 2: Making public licences understandable and consistent
How can potential users (authors and the public) understand public licences?
– Are high level attributes informative enough?– Compare AESN (including FfE) and CC attributes
How important / achievable is national consistency across schemes?
– Compared with maximum flexibility through competing licence schemes?
How important / achievable is international consistency?– iCommons is a major effort to achieve this– But at the price of translating from a US model
Task 3: Making works findable
How can potential end-users find works subject to public licences? commons require organisation
Is some form of registration workable?– Problems of multiple systems of public licences– Potential DOI application
Can web spiders / search engines find digital works with some consistent code embedded?
– CC search engine - dedicated web spider– Need an Australian search engine to search web and multiple
Australian public rights registries– How would this relate to global subject-oriented approaches?
Task 4: Devising incentives to create public rights
How to encourage © owners to create public rights? ‘Vanity press’ inducements (eg SSRN)? What open content business models are viable? Requirements for works created with public funding
(eg much academic work) to be publicly available Pro-active ‘acquisition’ of a © ‘national estate’ from
authors willing to donate to the commons– not to the ‘nation’ but to the public– as if ‘term extensions’ had not happened
When is ‘friendly expropriation + acquiescence’ feasible? - conditions and possibilities
Summary
Private property and the public domain are not a dichotomy
Works can be located along a continuum – legislation, expropriation, licensing
‘Unlocking IP’ project – mapping, preserving and extending the content and contours of Australia’s commons
References
Benkler Y ‘The Political Economy of Commons’, Upgrade, Vol. IV., No.3 June 2003
Boyle J ‘The Opposite of Property’ Law and Contemporary Problems Winter 2003
Copyright Law Review Committee 2001 Copyright and Contract (AGPS)
Hietanen H & Oksanen V ‘Legal metadata, open content distribution and collecting societies’, 2004
Lessig L Free Culture Penguin, New York, 2004 Oi I and Fitzgerald P ‘Free Culture: Cultivating the Creative
Commons’ (2004) Media and Arts Law Review (forthcoming)