«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»
All APRA’s 33,000 members have to assign to APRA all their public performance rights, before APRA can collect the royalties on their behalf.
Those 33,000 members include all Australian song writers and composers whose works are applied commercially. That affects a significant proportion of the creators that are already out there and working, and who may wish to participate in the Creative Commons. This is something that APRA members and anyone who potentially wants to become an APRA member will have to be aware of. They will not be in a position to use a Creative Commons licence to license their works, unless they have reached some alternative arrangement.
The wording of the Australian licence accommodates this up to a point, but there is still a danger and a risk for potential APRA members who do not realise what they are doing to potentially get themselves into trouble by trying to license out something that they may have effectively signed away to someone else. This is a follow-up area of work, and the people at APRA have been very good at giving feedback and comments on the effect and the potential interaction with Creative Commons. I look forward to working with them to develop some further commentary and to get some guidance out, and to find easier ways for creators to both work with Creative Commons and to also collect royalties via APRA. That is one area of work that needs to be done: collaboration with collecting societies in Australia and other organisations that are relevant.
The last thing I am going to talk about from a legal point of view is the moral rights side. The Creative Commons licence has already recognised a right of attribution, that is to say, the right to have your name put on a work if you are the creator. In Australia, we have a statutory regime that recognises that particular attribution right. There is no inconsistency in principle of policy between the Creative Commons licence and our Australian statutory scheme, but we needed to tweak the licence wording a little bit in that area.
There is however another moral right which caused a bit more of an issue for us to think about, and that is the right of integrity. This is the right of the creator not to have their work used, altered or changed in a way that would be damaging to their reputation. This is something that is not directly dealt with in a Creative Commons licence. The Creative Commons licence rights are very broad. They would allow you to do anything that comprises the rights in copyright, except to the extent that the rights are reserved. This is where there is a little bit of ambiguity. The wording says that if there are rights that are not expressly granted, they are reserved. This wording in the licence potentially could be interpreted ambiguously, as to whether the moral right regarding integrity was being asserted under licence so that a user could do anything except alter it to damage someone’s reputation, or whether the silence means that the user can do anything regardless of the moral right of integrity.
We thought about this, and started correspondence with our international colleagues in Canada and UK and there was a lot of tooing and froing of positions. One of the things that weighed on us in Australia at the end of the day was that, the person who is in a position to waive moral rights to consent to uses that would damage their reputation is the author and only the author, not the copyright owner, who may or may not be the author. In other words, the person who is in position to grant the licence of a Creative Commons’ work may or may not be in a position to grant that moral rights consent. Because of this potential gap, the interim position that we have adopted for this licence is to affirm that moral right of integrity. The licence provides that you can do anything you like except that you cannot damage the author’s reputation. I stress that this is an interim step. One of the things we and the Canadians (who are also in the same position - they have a similar statutory scheme), want to work towards is developing an option within one of the licence attributes for Creative Commons for this very issue. Do you want to go in and allow people to do anything they like?
Or, do you want them to do whatever they like except if it damages your reputation? We see the best solution as being to give people this choice.
In terms of legal issues, those are basically the main features of what we considered and did. We changed the spelling of licence from LICENSE (the US usage) all the way through the documents to LICENCE (the Australian usage). I have to say that I did not care so much about this spelling change, but other people on the drafting team did care about it, so they won. We are at the stage now where the Australian licences have gone live. We have some work to do regarding: providing more guidance to make these licences more usable; cutting out the middle man of lawyers, by way of working with other organisations such as collecting societies to make arrangements smoother; and putting out more information out there to make the Creative Commons Australia licences more practical.
Government and Creative Commons The Government’s Role in Supporting Creative Innovation Why Government and Public Institutions need to understand Open Content Licensing
LINDA LAVARCH MLA, PROFESSOR STUART
CUNNINGHAM, DR TERRY CUTLER, DR ANNE
FITZGERALD, NEALE HOOPER AND TOM COCHRANEThe Government’s Role in Supporting Creative Innovation We move from the micro back out to the macro in our next section, which will feature the Queensland environment more broadly in the area of innovation, where the operation of a Creative Commons licensing regime will have real meaning in terms of the operation of the Queensland economy and society. The conference programme indicated that the speaker on this topic would be the Minister for State Development and Innovation, Tony McGrady. Unfortunately, the Minister was called away on short notice. His Parliamentary Secretary, Assistant Minister Linda Lavarch MLA, therefore spoke on the Minister’s behalf. [After the conference, Linda Lavarch was appointed Attorney General for Queensland.] Professor The Hon Michael Lavarch (Dean, QUT Faculty of Law) Why Government and Private Institutions need to understand Open Content Licensing This presentation focuses on the role Creative Commons and Open Content Licensing can play in copyright management within government or the public sector more broadly. The Chair was Professor Stuart Cunningham, then Acting Dean of the Creative Industries Faculty. Since the conference Stuart has become Director of the ARC Centre of Excellence for Creative Industries and Innovation, which funds a number of projects aimed at furthering research and education on open content licensing in Australia, including the Creative Commons Clinic, Creative Commons and Open Content Licensing and Digital Liberty projects.
The members of the panel who provide papers here include Dr Terry Cutler, who looks at the public policy issues surrounding open content licensing; Dr Anne Fitzgerald, who discusses the Copyright Law Review Committee’s review of Crown Copyright under Australian law; Neale Hooper, who discusses open content licensing options for governments; and Tom Cochrane, who closes with a discussion of the importance of open content licensing to public institutions and universities.
I received a phone call about an hour ago to say that Minister McGrady had an urgent family matter to attend to and asked if I could stand in his stead today, and this, I quite welcome. I did not welcome the circumstances in which I was asked to do this, but I was going to come to the Conference anyway.
I would be remiss in not recognising Professor Lawrence Lessig. Welcome to Queensland. I have met you before via the video-conferencing screen. I would also like to recognise Deputy Vice-Chancellor Tom Cochrane and Professor Brian Fitzgerald and congratulate you on organising this Conference. It is very timely for what is happening here in Queensland and very apt that the Conference is here in Queensland, so congratulations on organising it.
The comments I wanted to make refer back to the launch of Creative Commons in Australia in April 2004, with Professor Lessig via the video conferencing screen at Queensland University of Technology (QUT). I came down in no official role, just out of interest because it sounded interesting. But I was like a blank page, knew nothing about the project itself. I walked into that room and my knowledge grew as the project was launched. After a very short amount of time, I was on the edge of my seat and the neurons were firing and doing brain gymnastics because in a role as a legislator or a parliamentarian it is very rare that you get, or you are presented with a new way of thinking. And that is how I felt that day. And the words of Professor Lessig’s address here this morning were remarkable, stimulating, exciting. To complete the picture for you, two officers from the Office of Spatial Information who went to the launch introduced themselves to me and we were like a babbling brook walking down George Street, talking of what the Creative Commons Project was all about and how it did turn your thinking on its head.
As a legislator I call it, or have dubbed it, the Speed Bump Rule. We all live basically by the Speed Bump Rule –– whoever was that first person that drove at a very fast speed through a car park has imposed upon the rest of us for the rest of life speed bumps. We have a very pessimistic view of people and human nature and when we are dealing with issues at a legislative level, it is at a level where you try to imagine the most evil and dastardly deed a human could do. Then in our tool box we only have one tool, the big stick. And this is why I noticed the speakers spoke with optimism and I found that after the Creative Commons launch, being the eternal optimist that I am and a great believer in the best of human nature, it did turn my thinking around as a legislator.
But now I will turn to the Minister’s speech. Just one last word before I do.
I know that here in Queensland this will broaden the audience that will be talking in the terms and the premise of the Creative Commons Project. The title of the Minister’s speech today is The Government’s Role in Supporting Creative Innovation. Now the speech is not about what should the government do; what we will speak about is what is happening here and now, right here in Queensland. In my sort of moment of jest I call it the Queensland Boast, but of course it is much more than that and I just want to set the scene for you.
In 1998 when the Beattie Labor Government was elected to parliament and to government here in Queensland, we came in on a policy called ‘The Smart State Strategy’. The thinking behind that strategy was that Queensland has always been a mine and a farm, and in our mining and farming the technologies that were being used were still, in many quarters, a hundred or more years old. And whilst we could rely on our economic base, based on the world prices of what was mined and what was farmed, we knew that that was not sustainable. In contrast the Smart State Strategy looked at ways of investing in emerging industries, investing in new technologies to bolster our traditional industries and to ensure that we have sustainable jobs for the future and a healthy economy here in Queensland.
In the early days of the Smart State Strategy it was changing the way of thinking here in Queensland; it was turning people, turning industry, on its ear and saying, “You can do better; you can embrace new technology; you can embrace new thinking”. We put our money where our mouth was, investing in science and technology and innovation, and making innovation an essential plank to that strategy, and to the quality of life and the future of the Queensland community. To get the message across, the Premier decided that our number plates should read: ‘Queensland. The Smart State’.
Well, our daily newspaper, of august record, decided that we were, ‘The Sunshine State’, and we were going to remain ‘The Sunshine State’, and started a very negative campaign. But it is interesting what happens out there in the community, despite this overwhelming negative campaign about being a smart state and having a smart state strategy. It still remained and could be built upon in the community. It did not get scuttled in other words. Nearly seven years, on, it is now becoming a much more widespread notion and something that all Queenslanders are very proud of.
Even when you go into primary schools you get little seven and eight-year olds going, “we’re Queenslanders, we’re from the Smart State”, and you know the message has got through then.
We are up to the stage now where last year a paper went out for full consultation in relation to ‘The Smart State – Where to From Here?’ I understand quite a lot of submissions were made and they are being considered at the moment. I have no doubt that the premise of the Creative Commons Project was embodied in a submission and is probably at this moment being considered. It is not part of government policy at the moment. But what I just wanted to give you was some examples on that broader basis of innovation and supporting the creative industries here in Queensland, along with science and technology, and just to give you the colour and the feel of what practical things the government is doing.
One of the interesting debates and one of the areas where there is still a lot of work being done is how to commercialise the innovation that is happening. We are now becoming world known in relation to our mining software and product which is being developed here and now. Another area where Queensland is forging ahead is electronic games development. Our local companies, Krone and Auran, are leading the way for the games industry in Australia. Their products are sold internationally, particularly in the United States and Europe, and have expanded to Asia.