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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 second area of systemic failure I see is caused by positive policy distortions, and here governments are at fault. The problem here is the total lack of balance in current government policies with respect to the generation and exploitation of knowledge and intellectual capital. I was reading yet another Federal desk report on commercialisation of IP in the public sector and the only matrices they looked at when they looked at public sector research institutions and universities were twofold – one patents and secondly the number of spin-off companies – and this sort of mindless obsession with the notion that success is getting intellectual property out into a spin-off company as quickly as possible is distorting the public discourse and behaviour in this whole domain hugely.

The problem there is the lack of balance it causes against the offsetting public policy imperative (and we can see the lack of public policy discourse around the whole notion of technology diffusion and take-up across the whole economy and within the community). It is again this lack of balance, and the lack of attention to the issues of distributional efficiency or equity, that this matters. If we look at what is happening in the digital and technology world, what we are seeing is the impact of network effects at the macro-economic level. The more rapid the technology diffusion, the more rapid the take-up, the greater the externalities that arise from the wide-ranging penetration of new ideas and know-how. But that notion of realising the community benefits of the externalities is completely at odds with the notion of expropriating public sector funded knowledge into the micro-economic level of the firm and start-ups and so forth. This is a lack of balance which is starting to become a serious problem, not only in Australia but more widely.

The second point I noted was the abnegation of public policy leadership and what is interesting is that all the exciting initiatives, like the Creative Commons and so forth, are not coming from government, but from nongovernment organisations, special interest groups and so forth. If we look more broadly across the intellectual property domain, and not just at copyright but also at the whole patent domain and what is happening around technology innovation generally, we are seeing a fundamental ground shift in the way the private sector is thinking about intellectual property and its exploitation, which is very reassuring.

There is a fabulous book that just came out by a Californian practitioner called Hank Chesbrough called Open Innovation: The New Imperative for Creating and Profiting from Technology. 38 It really brings together the sort of radical shifts in the way that major technology companies, like Intel, IBM and CISCO, are thinking about how they exploit IP assets and recognises that you cannot develop intellectual capital on a vertically integrated, closed model in the way that we did in the past, and that the open diffusion and transfer exchange of innovation across firms within markets, is now working to the benefit of all.

We pull out the great anti-heroes of copyrighting – Microsoft or the Motion Picture Association or whoever – but in doing so we often ignore the fact that there are profoundly important developments happening and a shift of the ground in the corporate scene which reinforces a re-balancing of the (2003) Harvard Business School Press, Cambridge.

public policy agenda despite the lack of attention of government. One of the signals of this is also the greater focus and push by industry around standards, formation and so forth. You will see in the online world the role of groups like The World Wide Web Consortium in very much pushing an open innovation model, where in fact sort of proprietary IP is positively frowned on. That gives me some encouragement, but it is a great pity that its developments have not been paralleled in government thinking in the public policy debate.

The third point I just wanted to end on was the obvious one of the failure of government’s administration of its own public assets – our assets. There are a number of areas here that are interesting and a number of them were highlighted for us from work that I did with Stuart Cunningham and CIRAC here at QUT on the role of innovation and research and development in the whole digital content sector. There has been a serious lack of attention to the impact of IP regimes on collaborative practice and inter-disciplinary research, and that is going to be one of the big issues into the future, but more directly the lack of explicit recognition of the role of, particularly, public cultural institutions in the innovations system. What you see when you look at it, when we looked around this whole digital content arena was in fact that a lot of really important break-through innovation was coming out of museums, places like The Centre for the Moving Image, which I chair, around meta-data standard development and so forth. It was totally not recognised in the charters of these organisations, not legitimised in terms of how governments see the role of these cultural institutions, and, not surprisingly, not funded. It has been a really important, default, but largely underground role, and the challenge for government is to see the positive role of public institutions within a whole innovation system.

A related point is the role for public cultural institutions, in particular, as open content repositories. We have seen the initiatives like the BBC Archive in the UK, but the role of the ABC, museums, galleries, places like The Centre for Moving Image, open content repositories, in a country like Australia is crucially important because in a small country economy like Australia it is only in the public sector that you find the scale that potentially can make a difference. Here public cultural institutions can play a disproportionate role in creating critical mass around open content repositories and it would be great to see more attention given to that.





Finally, the failure of government to address the issue of Crown copyright is extraordinary. We have been so slow in reforming this area in Australia compared to the intelligent discussion and debate you see in countries like the UK. We are so far behind, but it is one of the areas where the more you talk to industry players, a change in policy so that governments put the IP assets they develop or control – our assets – back into the public domain is one of the crucial things that could make an enormous difference to not only access to content but also industry development in Australia. If Queensland is going to be such a Smart State, and thinking about the question of how Queensland might respond to being the birthplace of the Creative Commons in Australia, then it would be fabulous if we could see an announcement that Queensland is going to adopt a Creative Commons framework for its crown IP. Let me end with a note that comes back to that parallel of content, knowledge and the reservoir of creative expression that makes up our civilisation, and say in no democratic society would we let people go hungry and starve to death for lack of food, but we do not put the same passion and attention into making sure that the intellect and the creative spirit does not starve to death because of a poverty of ideas and creativity.

That is really a perfect segue into the next presentations, which will be as a group. Dr Anne Fitzgerald and Neale Hooper will be presenting on certain projects within the Queensland Government, in particular a project called Information Queensland, on applying Creative Commons philosophies to Crown information.

DR ANNE FITZGERALD

I should preface this by saying that what we are saying here today is not an official statement. Although a lot of what we do say is already included in published documents, submissions made by the Queensland Government, in particular, to the Copyright Law Review Committee’s (CLRC’s) present enquiry into Crown copyright which is available on the CLRC website.

Neale Hooper and I had a hand in drafting those along with people from other departments, so I should also put a rider here. It is very difficult to come and talk about something you have been so closely involved with for such a long time and to try and encapsulate it in a few minutes. Apart from yesterday, for the previous six working days, I have taught intellectual property law for 5 hours per day, five days straight at Macquarie University, and then Monday here in the Internet Law course at QUT.

The topic, and particularly the way Dr Cutler has led into it, does raise a lot of issues. A simple solution is to say you would have more freedom, more competition, more ready access to material, if you removed copyright. If we remove that set of proprietary rights, if we say that no one has rights in information, apart from the person who can get their hands on that information and then make something of it, that will allow that person to inevitably turn it into another proprietary product, which will probably be locked up and made less accessible.

The answer to the question is not so simple as to say abolish Crown Copyright. Unfortunately licensing as a concept and practice was not particularly addressed in the Crown Copyright Issues Paper and Discussion Paper (July 2004). It has been approached much more from the point of view of the academic, or ex-academic, doctrinal lawyers, rather than the way that copyright is used in practice, which is essentially from a licensing perspective. What we have seen, in looking at freedom and access and the remix of material, which is essential to culture, the fabric of society, the running of our communities, knowledge about law, judgements, government information and so forth, is that it is not necessarily the case that that information is going to be made more freely available and accessible by the removal of copyright. It may be made more accessible by retaining copyright. It is very strange in this era to think about removing copyright. The approach that has been developed through Professor Lessig’s group – which is really now expanding internationally – is to assume the existence of intellectual property rights but to more creatively make material available. Whether we call it free licensing in a software sense, open content licensing has a lot of attraction.

I would like to go through very briefly what we are talking about with the CLRC Inquiry. For those of you who are not really familiar with it, there are special provisions in Part VII of the Copyright Act which set out special rules relating to Government ownership and Government use of copyright material. Special rules apply to the kinds of materials in which governments attain copyright. These rules can be seen to operate somewhat more broadly than those that would otherwise apply under the general provisions of the Act. For example, sections 176-178 of the Act say to us that government obtains copyright in materials that are produced by or under the Director or control of the Crown. If we deconstruct that we can see what we have got here is, as well as harking back to our general provisions of the Copyright Act and how copyright comes into existence in works ‘made by authors’, we have this add-on, this particular phrase, ‘Made by or under the direction or control of the Crown’. It has not been subject to any significant interpretation. There is one case which has dealt with it in passing, but when you look at the kinds of materials in which copyright would exist from a government perspective, and the kinds of materials which governments need to be able to control, you can see that you can categorise them into really essentially three broad groups.

What we have is the usual situation that any employer is going to be in of materials that are made by the employees. In a government context we could interpret that statutory formula as also including material that has been commissioned by government from outside contractors or suppliers. It is as if a default rule is read into that – it is arguable as to whether this is the correct interpretation of the law but it has been accepted by academic commentators as being the way that the law operates – to say that where government commissioned material, where something is made under the direction or control of the Crown including under a commissioning contract, that copyright would by default, unless there is some agreement to the contrary, vest in the Crown.

There is a whole other group of materials which in fact the CLRC did not address at all in its initial report on Crown copyright. It was pointed out to them in the submissions that went in from Queensland Government that there is a massive amount of material that government holds and collects and that is essential to the performance of the State’s constitutional function, which would also arguably come within the statutory formula of ‘made under the Director or control of the State’. And that is where you have got provisions set out in legislation, regulation and often hugely detailed administrative guidelines, requiring people to lodge materials of a whole range, so that some kind of document, which may be a report, which in itself would be the kind of material that would attract copyright protection, you are required to do this under a statutory obligation to produce that material and lodge it with the State.

Those kinds of materials are usually required for carrying out public administration – the kind of thing that, when you are in Government, it is pretty obvious that you need that material embodied in those documents.

Essentially you need the information and it just happens to be embodied in documents which also attract copyright protection. It is material that is quite essential to the functioning of the State. It could be detached from those particular documents and reorganised so that you do not have to worry about the copyright in the document in which it was submitted. But those are really the three broad types of groups which we could say you could identify in terms of the kind of material that Government deals with.



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