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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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The other area where Queensland is leading the way is in relation to the ehealth Network. You may have seen in the news about the medical teams over in Indonesia that are now using the e-health technology to assist the tsunami victims. And this e-health technology is recognised internationally as the largest and most utilised video conferencing network of any single health network in the world. And in e-security we have the largest research community in the southern hemisphere. QUT has had a lot to do with that coming to fruition. Indeed, in the very near future this will be boosted further with the opening of a dedicated e-Security Research Centre at the proposed Boggo Road Development. It was our old prison, so instead of securing people, we are now securing information there. This is a very exciting project here for Queensland and for Australia indeed.

Our bio-technology industry is also growing rapidly, receiving world-wide attention. We recently had the Australian Oz Bio Tech Conference here in Brisbane. It was the first time it was in Brisbane and there were 1300 delegates, the biggest ever, and can I say it was a very exciting conference.

The other area where we are forging ahead is in relation to therapeutic drugs and other products. Queensland is recognised as having some of the most unique plant, marine and animal life in the world and again leading the way forward, and this time in legislation. The Queensland Parliament enacted the Bio Discovery Act last year. A lot of the marine and animal and plant life will come from the national parks and state lands here in Queensland. Under that Act, for the first time in the world, the State will benefit financially from the commercialisation of the use of that product into therapeutic drugs and goods. You were talking about traditional knowledge before. Whilst it does not cover the IP area, traditional knowledge is recognised under that Act. A requirement is that those pharmaceutical companies, or the bio-prospectors, have to reach agreement with the traditional owners of that traditional knowledge if they are to use that knowledge in the production of drugs and other goods. And that is the first time that this has been recognised in legislation as well.

The other area that we are putting a lot of effort into is the business side of the innovation and technologies. We have been a strong supporter of innovation because we understand that it creates the opportunities. We have helped by hosting conferences, like Oz Bio-Tech, assisting companies that take part in trade delegations through direct grants to help companies develop and commercialise technology, by assisting industry to set up clusters in areas where we have potential to create niche markets, and we have invested 2.4 billion dollars in science research and innovation in the past six years or so.

What we are also doing in relation to creative industries is investing. Here in Queensland we have a creative industries strategy and we have provided $15M towards QUT’s impressive $60M Creative Industries Precinct at Kelvin Grove. We have also developed in conjunction with industry a $4.4M creative industries strategy, as I have said, which focus on the business end of the creative process. We realise that creative industries have enormous potential to create more jobs and wealth for Queensland and we are also working to enhance and spread our Smart State reputation globally.

I hope you take that away back to your home after today because I know that as I go around the country we are the envy of all other states, through the recognition, the strategies and the dollars, the investment. We have also found that the creative industries have already contributed 1 billion dollars to the value of Queensland’s goods and services each year and that there are 65,000 Queenslanders employed directly or indirectly in creative industries. It is no small employer for the State. That probably measures up with the manufacturing industry which employs somewhere just up to about 180-190,000 people, just to give you some idea.

The only other thing I wanted to mention to you today is that last year we supported a successful writers’ foray into Los Angeles, which showcased the work of 14 Queensland writers to film development executives and topnamed agents. And we are very proud of the fact that that has already had a great success with our local author Nick Earl picking up a deal to option his novel, 48 Shades of Brown, 36 for film development, and we understand that there will be some further good news to follow there. That was a government initiative to take the writers into Los Angeles.

If the Minister was here today, the message that he would want to get across to you, and the message that I want to give on behalf of the Queensland Government, is that we are committed to helping our creative people sell their products and we are committed to the creative industries here in Queensland. I wish you all the best for the remainder of the Conference and look forward to meeting a few of you over lunch.

(1999) Penguin Books, Victoria.

Why Governments and Public Institutions Need to Understand Open Content Licensing




Creative Industries is a relatively new way of describing the sectors from architecture and design, through visual and performing arts, through media, to the emergent new media forms. It is really a grab-bag of a whole range of sectors. The big challenge is: what is connecting all those sectors? Our Faculty has eleven disciplines, and that does not exhaust the range of creative industries sectors that have been grouped under this terminology.

The terms were invented by a creative industries task force in 1997 in the

UK and they defined Creative Industries in this way:

Those activities which have their origin in individual creativity, skill and talent and which have the potential for wealth and job creation through the generation and exploitation of intellectual property. 37 As you can see from that definition, it is not sectorally specific; it is functionally specific, and it raises issues of intellectual property to centre stage in terms of the future coherence and growth of this sector. The Creative Industries Faculty here at QUT is the first. There has been one further naming of a faculty as a Creative Industries Faculty at Edith Cowan in Perth, but we were the first, and really we have, if you like, to use a business terminology, brand leadership in this term in Australia. We were very interested, and it shows through that definition why we were interested, in working closely with law and with the Law Faculty and really this is one of the reasons why we have been very pleased to co-host this event with the Faculty of Law here at QUT.

Where does this panel sit in relation to the architecture of this Conference?

Professor Lessig’s case for the development of the Creative Commons “Creative Industries Mapping Document” (1998) Department for Culture, Media and Sport http://www.culture.gov.uk/Reference_library/Publications/archive_1998/Creative_Ind ustries_Mapping_Document_1998.htm at 13 February 2007 yesterday laid out a compelling vision of a remix, or what I might call a DIY– Do It Yourself – culture where formerly passive consumers become active, engaged and sassy, talking back to the dominant hegemons or controllers of cultural production, appropriating and re-forming communities of practice outside the vectors of media ownership and control. In this vision, where do the state, government and public institutions fit?

Traditions of left progressive thought and activism in the US typically are far more sceptical of the potentially useful role that the state or government might play in forwarding progressive change than otherwise is the case in social democratic traditions, out of Western Europe, Canada or places like Australia and New Zealand. Professor Lessig’s case, at least in the bald outline in which he presented it yesterday, steps around these questions.

Governments in this vision are challenged to reform their antiquated IP regimes and stop falling into line with corporate interests, but rarely are they seen as having the potential to be much more pro-active and promoting open content licensing as a way of forwarding of their public service and good governance responsibilities and charters. This is what this panel will consider.


The job that I was given was to start to look at some of the public policy issues that might be involved and I took that brief broadly to frame some of the broader issues that are quite interesting. I am focusing on three points.

We can see a systemic failure of public policy across the whole domain of innovation and investment in creative capital and intellectual property. The symptom of this systemic failure as I see it has been an abnegation of public policy leadership basically to non-government organisations, notfor-profit organisations and, increasingly and interestingly, to the private sector – stepping into this vacuum. This failure has been compounded and continues to be compounded by what I see as failure in the government’s own administration of public assets.

Let me briefly elaborate on three areas. First, the systemic failure of public policy with respect to the whole area of knowledge and creative assets. In this, I see the fabulous Creative Commons initiatives as being a necessary but far from a sufficient response to the intellectual property and technology challenges of this century. That is an important point to keep coming back to. What we are doing with Creative Commons is terrific, but as Tom Cochrane said, it is a sort of artful compromise around some of these issues, necessary but not sufficient.

What are some of the symptoms of this systemic failure that I point to?

First, the carve-out of intellectual property law from the whole framework of free trade and the notion of free markets. If dear old Adam Smith were to come back today he would be absolutely staggered that we have this whole area where the economic framework is still in the mercantilist model that the wealth of nations was attacking and undermining and replacing, because it is a model that relies on Letters Patent and charters of privilege, which of course was the whole foundation of the mercantilist system that Adam Smith drew the line under in a compelling way. It is ironic that Free Trade Agreements are the vehicle for the capitulation of anything but free markets in intellectual property and ideas.

The second area of carve-out, and this is really the important one, is from competition policy and competition law. One of the things we often neglect with the direct importing of legal regimes and trade agreements and international treaties, is that we do not look at what we are not importing in terms of the offsetting regimes that accompany some of these legal frameworks.

If we look at intellectual property law and copyright, while we have holus bolus with a stroke of the pen adopted the US regime under the Free Trade Agreement, what we have not imported are some of the offsetting protections. If you look at Europe there is a strong tradition there, particularly in the patent and drug area, around the legislative promotion of generic drugs – sort of a framework concept that we are far from here. But more importantly in the US and in Europe, the whole framework of antitrust legislation has been crucial in providing balance to a lot of the abuses around intellectual protection, and of course we have none of that here.

That has been a really neglected part of the whole Free Trade debate.

The other thing that strikes me when I look at the systemic failure is the lack of focus and attention in public policy discourse in the US, where you are not seeing the addressing of issues, you are seeing in what we can describe as parallel areas, or issue areas. One of the things I like to do when I work with my technology companies is, when they come up with some bright ideas as draughtsmen, ask them what does this sort of problem, or product, or potential service, most look like in action. You learn what it might mean to implement and employ something, and it is interesting to ask yourself the question, ‘what do these copyright and IP issues often most look like in other areas of public sector debate and public policy concern?’ I thought when I was looking at the Conference programme, would it not be great to get some people from other fields, like interesting thinkers around economics, particularly around development economics. This took me back to one of my heroes, Amartya Sen, who of course, won the Nobel Prize in 1998 for his work in development economics, and his science is really around social choice theory.

What does that imply for intellectual property? It is how we make choices around the balance of priorities within a community, and one of Sen’s famous observations from his work was that famines have never occurred in a country with a democratic political framework. That got me thinking, because when you look at his work, it is all about the causes of famine in un-democratic – in unopen societies – where there is a failure of equitable distribution. We are saying that in these key areas, failure of distribution does not occur in the democratic society where people sort of vote against anyone who disregards basic needs. He defines poverty, which I find really interesting, as a serious deprivation of certain basic capabilities, often through expropriation. You have these areas of public policy investigation that are posing seriously interestingly questions, which in my view apply directly to the discussion of intellectual property and copyright issues. It is interesting in my mind to ask the question of why does intellectual or knowledge deprivation (you know freedom is the lack of capability) occur in this class of sustenance we call intellectual capital, which is so crucial to feeding the mind and creative spirit? Why do we have to accept potential poverty in this area, when we do not accept that in the physical world? And failure within a democratic society is a failure of the greatest magnitude.

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