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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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Open Content Licensing:

Cultivating the Creative


Principal Editor

Professor Brian Fitzgerald

Head of School of Law,

Queensland University of Technology, Australia

With the assistance of

Jessica Coates and Suzanne Lewis

Sydney Unversity Press

Published in Sydney by

Sydney University Press

University of Sydney


Publication date: March 2007

The material in this publication is based on papers presented at the Open

Content Licensing: Cultivating the Creative Commons conference held by the Queensland University of Technology (http://www.qut.edu.au) in Brisbane, Australia in January 2005.

This publication is an output of the ARC Centre of Excellence for Creative Industries and Innovation (http://www.cci.edu.au), Queensland University of Technology.

Unless otherwise stated, the law and services represented in these papers are discussed as they existed in February 2005.

ISBN 10 1-920898-51-4 ISBN 13 978-1-920898-51-9 This work is licensed under an Australian Creative Commons AttributionNonCommercial-NoDerivs 2.5 License available at http://creativecommons.org/licenses/by-nc-nd/2.5/au/. For more information contact Professor Brian Fitzgerald, Faculty of Law, Queensland University of Technology.

List of Contributors Richard Neville Professor Arun Sharma Mark Fallu Professor Barry Conyngham AM Greg Lane Professor Brian Fitzgerald Nic Suzor Professor Lawrence Lessig Professor Richard Jones Professor Greg Hearn Professor John Quiggin Dr David Rooney Neeru Paharia Michael Lavarch Stuart Cunningham Dr Terry Cutler Damien O’Brien Renato Ianella Carol Fripp Dennis MacNamara Jean Burgess The Hon Justice James Douglas The Hon Justice Ronald Sackville Linda Lavarch MP Tom Cochrane Ian Oi Dr Anne Fitzgerald Neale Hooper Keith Done Sal Humphreys John Banks Table of Contents Foreword 1


A Short Overview of Creative Commons 3



Introduction 8


Does Copyright Have Limits? Eldred v Ashcroft and its Aftermath 11




The Vision for the Cr

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Perspectives from the Creative Industries 94



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Games History, Content, Practice and Law 196



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In late 2003 I became involved with the Australian implementation of the Creative Commons (CC) Project along with Tom Cochrane (DVC TILS QUT) and Ian Oi (then of Blakes Lawyers now a Partner at Corrs Lawyers). We were excited by the possibilities that CC might provide.

QUT became an Institutional Affiliate and an Australian version of the Creative Commons licence was completed (creativecommons.org.au).

In order to celebrate and launch the Australian version of the Creative Commons licence and inform people about the project more generally we decided to run a conference here in Brisbane in January 2005 on Open Content Licensing: Cultivating the Creative Commons. The chapters that appear in this volume are a result of that conference.

The conference would not have been possible without the generous support of QUT Vice Chancellor Professor Peter Coaldrake. Amongst other things Peter sponsored the visit by Professor Lawrence Lessig of Stanford University Law School, the leader of the Creative Commons movement.

The speakers and participants made this conference a truly memorable event and put Creative Commons on the map in Australia. It brought many of the key thinkers of the open content movement in Australia and internationally together for the first time, and provided an opportunity for them to exchange views and research on this increasingly important topic. I am particularly indebted to Justice Sackville, former Qld Attorney General Linda Lavarch, Richard Neville, Barry Conyngham, Tom Cochrane, Stuart Cunningham, Michael Lavarch and of course Lawrence Lessig for providing their support.

Since the conference QUT has been awarded an ARC Centre of Excellence for Creative Industries and Innovation (www.cci.edu.au) under the leadership of Professor Stuart Cunningham, for which I am Chief Investigator and leader of the Law Program. A Creative Commons Clinic and Creative Commons research program feature heavily in the agenda of this new Centre. The Department of Education Science and Training (DEST) has also sponsored a project – known as the Open Access to Knowledge (OAK) Law Project (www.oaklaw.qut.edu.au) – of which I am Project Leader. The ‘OAK Law Project’ will develop copyright management protocols for Open Access that can be employed by Australian research repositories.

Jessica Coates and Suzanne Lewis have done an enormous amount of work with the 2005 conference contributors to edit the papers provided by them during and following the conference into polished book chapters. Thank you also to Amy Barker, Susan Hedge and Kylie Pappalardo who assisted us with the process. Keith Done and Sian Haigh gave us tremendous support in organising the conference as did conference assistants Nic Suzor, Damien O’Brien, Amy Barker, Michael May, Amanda Campion-Steele, Cher Bartlett and Elliott Bledsoe.

I hope you enjoy reading these papers as much as we enjoyed hearing

them. A video archive of the conference is available at:


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What is Creative Commons?

Creative Commons (CC) is a world wide project that aims to make copyright material more accessible and negotiable in the digital environment. To achieve this Creative Commons asks content owners who wish to contribute to the commons to label their material with a CC badge representing the terms upon which the material may be reutilized: (see the website at creativecommons.org) This process of generically giving permission in advance – use my content so long as you attribute me, or engage in non commercial use, or make no derivative works or share your improvements with the broader community – allows users upon seeing content labelled with the CC symbol to know exactly, at that instant, what right they have to reproduce, communicate, cut, paste, and remix. The content owner reserves some rights of control but eschews the common commercial approach of all rights reserved.

Who is behind it?

Creative Commons is a not for profit corporation having its origins at Stanford University now having its headquarters in San Francisco. The Creative Commons concept was given worldwide impetus through the release of Stanford Law Professor Lawrence Lessig’s book The Future of Ideas: The Fate of the Commons in a Connected World 1 in 2001 and is further reinforced by his latest release Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. 2 The international development of the basic CC protocols or licences (iCommons) has grown to the point where over 60 countries throughout the world are participating. In Australia, QUT is the institutional affiliate for the Creative Commons and has been at the forefront of the development of the Australian version of the standard CC licences along with Ian Oi of Blakes Lawyers. The international licences or protocols are available online at creativecommons.org.

(2001) Random House, New York.

(2004) Penguin Books, New York.

Is anyone using CC?

The CC project has garnered worldwide attention with the BBC announcing it will licence archived material under CC styled licences and popular US magazine Wired releasing a CC licensed CD including well known artists The Beastie Boys and Talking Heads front man David Byrne with their November 2004 issue. For an interesting example of how CC has facilitated remix and innovation listen to the Colin Mutchler song ‘My Life’ and the derivative works it has generated, many of which are available at http://colinmutchler.com. Worldwide it is estimated that, as of 1 June 2006, over 140 million link backs have been made to CC licences.

Why contribute to the Creative Commons?

A common question is “why would people want to share digital content?”

Some reasons are:

• Ideologically and financially this may be acceptable – the most compelling example in Australia is government where information is ultimately owned by and for the people

• Open contenting one version of your material e.g. a draft (E Print) or a chapter may in fact be a strategy for enhancing the commercialised version of your content

• A wish to share with others for creative and educational purposes – peer production

• Publicity – what the free and open software movement calls ‘egoboo’ or reputation within the open community which in some cases will be exploited commercially down the track

• Negotiability – through technologically implemented generic protocols that can be utilised with the click of a mouse • ‘What is junk to one may be gold to another’ – the idea that the off cuts or digital junk of one person may be the building blocks of knowledge and creative genius for another • ‘Indirect appropriation’ – money, design and use of end product, pleasure or social profile gained through involvement in peer production 3 See Yochai Benkler ‘Coase’s Penguin, or Linux and the Nature of the Firm’, (2002) 112 Yale Law Journal 369.

Does CC mean that Copyright Law is Redundant?

Creative commons draws on the work of the free software movement. ‘Free software’ means free as in freedom (to access code) not price and has come to the fore in an environment of proprietary software distribution where source (human readable) software code is hidden from public view. The free software model is to distribute software with the source code open and accessible so that the recipient can easily and better understand the software. This in turn enhances further innovation, error detection and/or security testing. However the free software movement requires through its General Public License (GNU GPL) that if you use open code, innovate upon it and then distribute that code in a derivative work you must share all of the code of the derivative work with the person to whom you are distributing the software code (which in many cases will in effect mean

disclosure to the whole community). As has been written elsewhere:

The powerful insight that Richard Stallman and his advisers at the Free Software Foundation discovered was that if you want to structure open access to knowledge you must leverage off or use as a platform your intellectual property rights. The genius of Stallman was in understanding and implementing the ethic that if you want to create a community of information or creative commons you need to be able to control the way the information is used once it leaves your hands. The regulation of this downstream activity was achieved by claiming an intellectual property right (copyright in the code) at the source and then structuring its downstream usage through a licence (GNU GPL). This was not a simple ‘giving away’ of information but rather a strategic mechanism for ensuring the information stayed ‘free’ as in speech. It is on this foundation that we now see initiatives like the Creative Commons expanding that idea from open source code to open digital content. 4 The point being made is that models like Creative Commons rely on the power of copyright ownership and law to structure open access downstream. In this sense CC is not anti-copyright. Rather it uses copyright as the basis for structuring open access. However CC is designed to provide an alternative model for managing copyright in digital content.

A Fitzgerald and B Fitzgerald, Intellectual Property in Principle (2004) LBC/Thomson, Sydney.

CC as a Model for Making Copyright More Active There is great concern worldwide that too much copyright material is left inactive in archives (e.g. government, museums) because the process of negotiating the licence is too time consuming or expensive, even where the copyright owner does not want to make money. Now that we have a vast array of digital technology that can present much of this material to the world cheaply and rapidly more and more institutions are considering how they might allow greater access to their archives/knowledge (e.g. BBC). A facility for accessing archived material, especially publicly funded material, will increasingly be demanded as part of the landscape of information management and creative innovation. CC provides a effective and simple way in which sharing and collaborative effort can be facilitated in the realm of digital content and hopefully a way in which inactive copyright material can be given new life.

Conclusion: Copyright More Accessible and Negotiable

In a world where the digital generation feed off a culture of cut and paste, remix and instant Internet access Creative Commons will provide a vitally important facility for sharing knowledge in the name of culture and innovation. While respecting the basic principle of copyright CC allows a broader understanding of information management in a way which builds on the existing system. There can be little doubt that CC will become an important option in any copyright management and distribution strategy from the most sophisticated to the very simple of cases.

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Introduction The Hon Justice James Douglas introduces Professor Lawrence Lessig, and provides background on the Creative Commons movement and the Eldred v Ashcroft case.

Does Copyright Have Limits? Eldred v Ashcroft and its Aftermath Professor Lawrence Lessig discusses the 2003 US case of Eldred v Ashcroft, which challenged the 1998 Sonny Bono Copyright Term Extension Act and its extension of US copyright terms by 20 years.

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