Queensland University of Technology CRICOS No. 00213J Creative Commons and Government Professor Anne...

Queensland University of Technology

CRICOS No. 00213J

Creative Commons and Government

Professor Anne Fitzgerald

CSIRO Legal Conference, Canberra

18 March 2010

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CRICOS No. 00213Ja university for the worldrealR

Crown Copyright• Vast amounts of government copyright materials• Copyright applies to:

– Informational works– Research outputs (reports, papers, databases)– Cultural materials

• Public Sector Information (PSI) in a broad sense includes material that is: – created within government by government employees;– produced externally by recipients of government funding; or– prepared by non-government parties and lodged with

government under a statutory obligation or regulatory direction.

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Copyright in data compilations

• Protected if meets the originality threshold.• Protection extends only to the arrangement of the

collected components • i.e. the particular way the data/components is presented in the

compilation.

• Copyright does not apply to mere facts/information • Copyright interests may co-exist independently in

components contained within the database and in the database itself, and may be owned by different parties.

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Copyright in data compilations • The originality test once considered satisfied if

substantial labour or expense had been invested in collecting the materials (the so-called “sweat of the brow” approach)

• Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002)

• Subsequent case law has cast doubt on this position – substantial labour or expense will not be enough without also “independent intellectual effort”

• dicta by the High Court in IceTV Pty Limited v Nine Network Australia Pty Limited (2009) and also the application of the principles in IceTV in Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) (on appeal)

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Copyright in data compilations Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010)– where an author or authors of a compilation can

clearly be identified; and – it can be shown that the compilation is original in the

sense that it is the product of • some “independent intellectual effort”; • the exercise of “sufficient effort of a literary nature”; • involves a “creative spark”; or • the exercise of “skill and judgment”,

then it is likely to be protected by copyright.– [2010] FCA 44 at [344] per Gordon J.

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Complex flows of Information• Flow of information

– Within government – among departments, agencies, different levels of government

– between government and community:• From government to community

• From community to government to community

• Licence logjams– No licences; inconsistent terms; incomprehensible; transaction

cost of negotiated permissions

• Promoting the flow of information requires appropriate policy frameworks and licensing practices

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Open Access

• Creating a commons of public sector materials– New conceptualisation of “public domain”

– Not just a no rights “wasteland [or] dump on the outskirts of respectable culture” (Bollier, Viral Spiral)

– Something of value in its own right – open knowledge and content that can be accessed, reused and distributed

– Encompasses materials that are copyright-protected and made available for access and reuse under open source software and open content licences

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OECD PSI Recommendation• the “Openness” principle states:

– “Maximising the availability of public sector information for use and re-use based upon presumption of openness as the default rule to facilitate access and re-use. Developing a regime of access principles or assuming openness in public sector information as a default rule wherever possible no matter what the model of funding is for the development and maintenance of the information. Defining grounds of refusal or limitations, such as for protection of national security interests, personal privacy, preservation of private interests for example where protected by copyright, or the application of national access legislation and rules.”

• the “Access and transparent conditions for re-use” principle states: – “Encouraging broad non-discriminatory competitive access and

conditions for re-use of public sector information, eliminating exclusive arrangements, and removing unnecessary restrictions on the ways in which it can be accessed, used, re-used, combined or shared, so that in principle all accessible information would be open to re-use by all. Improving access to information over the Internet and in electronic form. Making available and developing automated on-line licensing systems covering re-use in those cases where licensing is applied, taking into account the copyright principle below.”

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Complex flows of PSI

“Open access to government data can dramatically increase the value created from the data both socially and economically [and] the society as a whole benefits from access to the data”

- Senator Kate Lundy, Free and Open Source Software for Geospatial Conference 2009

How do we enable PSI to move without impediment among government agencies and between government and the private sector?

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Creative Commons (CC)

• Copyright vs “no rights” approach• Advantages of copyright-based approach for

government:– Open content licensing mirrors the fundamental

justification for recognising copyright in government materials

– Supports government’s open access policy objectives– Provenance and attribution– Avoids financial and technical lock-up of taxpayer-

funded materials

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• Copyright based, direct licences – Permitted uses are consents/permissions to do acts

within the scope of the copyright owner’s exclusive rights

– Acting outside the scope of the licence is an infringement of copyright

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CC is a Direct Licence (Copyright based licence)

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Attribution – attribute the author

Noncommercial – no commercial use

No Derivative Works – no changes allowed

ShareAlike – changes allowed, but only if you put

the new work under the same licence

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Attribution

Attribution-Noncommercial

Attribution-NoDerivatives

Attribution-Noncommercial-ShareAlike

Attribution-Noncommercial-NoDerivatives

Attribution-ShareAlike



What is a “non-commercial” use? • You may not exercise any of the rights granted to You

…… in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

• The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works. – Clause 4, Legal Code, CC BY-NC 2.5 Australia Licence

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What is a “non-commercial” use? • Generally, uses that earn users money or involve online

advertising perceived to be commercial, while • Uses by organizations, by individuals, or for charitable

purposes are less commercial but not decidedly noncommercial.

• Uses by for-profit companies are typically considered more commercial.

• Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use” (2009) – commissioned by CC in the United States

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• Advantages of CC for use by government:– Enforceability of licence

• Trumpet Software v OzEmail (1996, Federal Court of Australia, Justice Heerey); Jacobsen v Katzer (US Federal Circuit, 2008)

– Explicit statement of reuse rights– Clear statement that info is sourced from government

(attribution/provenance) – increased user confidence– Universal recognition of symbols– Discoverability of digital objects– Enables legal remix and mashup

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Creative Commons (CC)Attribution and Provenance• Clause 4, CC-BY 2.5 Australia Legal Code

– Attribution requirements based on economic rights of copyright owners to maintain electronic rights management information (ERMI)

• Copy of CC Licence/URI of licence must be included

• All copyright notices must be kept intact

• Clear and reasonably prominent credit must be give to the Original Author

• Work not to be falsely attributed

• Must not do anything that results in a material distortion of, mutilation of, or material alteration to the work that is prejudicial to the Original Author’s honour or reputation

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Creative Commons (CC)Termination on breach• If a user of a CC licence breaches the terms of the

licence, the licence and the rights granted under it terminate automatically.

• Clause 7(a), Legal Code, Attribution 2.5 Australia

• In the absence of a licence, the ordinary principles of copyright law come into operation.

• Following termination, any unauthorised use of the copyright material by the licensee may be an infringement of copyright that is subject to civil and criminal penalties.

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Creative Commons (CC)Revocable?• Perpetual grant of rights, lasting for the full duration of

copyright.– Clauses 3 and 7(b), Legal Code, Attribution 2.5 Australia.

• No express provision which entitles the licensor to terminate the licence solely for the licensor’s convenience

• However the licensor reserves the right to release the work under a different licence or to stop distributing it at any time.– Clause 7(a), Legal Code, Attribution 2.5 Australia.

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Creative Commons (CC)Revocable?• A bare (non-contractual) licence can be revoked at any

time, provided that adequate notice of revocation is given to any licensee

• Trumpet Software v Ozemail (1996)

• However, under the estoppel doctrine – a licensee may still be entitled to continue using the material

• Licensee needs to show they had:– in reliance on the CC licence,– altered their position such that it would now be unreasonable

(unconscionable) for the government agency/licensor to withdraw permission to use the licensed material

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Enforceable?• In Australia, non-contractual (bare) licences are

enforceable. • Trumpet Software v OzEmail [1996] FCA 560

• The most authoritative consideration to date of the effectiveness of open licences is the decision of the United States Court of Appeals for the Federal Circuit in Jacobsen v Katzer in August 2008.– held that the defendant had gone beyond the scope of the open

licence and thereby infringed copyright

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Creative Commons (CC)Enforceable?• open licences such as CC licences will be upheld by the

courts, even though they are applied to copyright materials distributed for no financial reward

• failure to comply with the licence conditions may be an infringement of copyright, for which the usual remedies will apply.

• CC licences have also been enforced in the Netherlands, Bulgaria and Norway, and treated as valid in court cases in Spain.

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Examples of adoption in Australia

• Australian Bureau of Statistics; • Geoscience Australia; • Bureau of Meteorology

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Examples of adoption in Australia

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Risk Management

• An Information Management Framework (IMF) comprises policies, procedures and systems to enable the strategic management of information.

• At the very least, standard protocols should be in place for every stage of the information life cycle, for example:– collecting the information from credible sources; – checking the information for noticeable errors before releasing it

online;– updating the information once new information is obtained; and – clearly detailing the scope and currency of the information.

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Risk Management

• The adherence to protocols or standards procedures under an IMF, whilst no guarantee that information released will be free of inaccuracies, is cogent evidence that the information provider has acted reasonably in the circumstances.

• Provides very little scope for argument that the government agency was negligent.

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