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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 present CLRC Inquiry kicked off from a two-line comment that was made by a previous Committee, the Intellectual Property and Competition Review Committee, in its 2000 report, which was an overview to ascertain whether the intellectual property legislation was satisfactory under the competition principles. It essentially addressed the second of those two categories that I have referred to. Where you have got it being interpreted as there being a default rule that goes into operation where governments commission material to be produced by contractors, essentially people are saying, ‘well this puts the Government in an unfair bargaining position’. A lot of people do not understand the operation of this rule.

Without getting into the arguments of whether that is correctly the case, or whether that is in fact government practice in this day and age, the CLRC Inquiry, as it states at the beginning of the first discussion paper that it put out, the Issues Paper (February 2004) essentially starts from this. There are some competition concerns about the operation of these provisions of the Copyright Act which invest copyright in the State. We can identify the concerns about competition on the one hand. But our concern really in this context is what has tended to be the concern of the State, which is not so much the competition concern of enabling other people to get hands on that government material so they can make downstream products from it, but enabling members of the public to obtain ready access to that material so that they have ready access to information which is relevant to them.

The CLRC put forward a range of suggestions as to how what it perceived as the unfairness in the system could be addressed. Interestingly, it did not seriously propose any extension of the existing set of exceptions in copyright. Copyright, as we know, is really a balance of interests: the balancing of the rights of the creators of the material on the one hand and the interests of dissemination of information, the interest of the general public on the other. The CLRC in its 2002 report Copyright and Contract 39 had stated that the rights of copyright are in fact defined by the exceptions and limits.

Interestingly, the CLRC in this enquiry is not really interested in access to copyright material by general members of the public; what they are interested in is not so much there being a greater set of exceptions or limitations, which would enable people to use parts of those materials;

Copyright Law Review Committee, Copyright and Contract (2002) http://www.clrc.gov.au/agd/WWW/clrHome.nsf/Page/Overview_Reports_Copyright_ and_Contract what they are more interested in is those materials being copyright free and essentially being collected and created into new copyright products.

Probably it would have been better if they had addressed this more openly in the report. Because the other thing is that when we start looking at that spectrum in Australia we start looking at the inevitable differences between our law and that of essentially all of Europe and the United States.

Our low level of originality means that copyright is easy to attain, whereas in the United States you will not really obtain copyright in a factual compilation or in a collection of material in which there is no pre-existing copyright. The same would really have applied throughout much of Europe. In Europe they have introduced specific database legislation to protect those kinds of collections of materials. The problem that we have is that unfortunately, the CLRC did not significantly address the interests of increased access to Government material, the underlying theme seemed to be, ‘let us see how we can remove copyright in whole from various categories of documents so that those entire categories can be freed up’, obviously for some implied further downstream use. If that further downstream actually use results in production of copyright materials that, in turn, will have a deleterious effect on access to the materials which we were trying to free up. My point about it not really being an issue of access is that CLRC in this enquiry did not raise in any way the issue of fair use. It had been recommended in the CLRC’s report of 1998 that I participated in as a member of the Expert Advisory Group. The CLRC recommended the introduction of a broader style US fair use provision. That recommendation was supported by the Joint Standing Committee on Treaties, which reviewed the implementation of the Australia-US Free Trade Agreement, acting late last year, so lots of interesting issues are raised by the idea of removal of copyright from government materials, but essentially what we can say is that that step in itself is not necessarily one that is going to result, in the not too distant future, in improved access to those materials.


I found myself in violent agreement with many of the comments and observations of Dr Terry Cutler. I was almost wondering whether that was what I should be doing and then to balance things up a little there was a bit of a sting in the tail of his address when he came along to the concept of Crown copyright. I understand and respect those views. It is a point of contention. There is obviously a public policy balance here and that is what we are really discussing and debating, that the whole idea of balance is what it is about. Open content licensing, let us be clear about this, is not the silver bullet. It is not the panacea. It is not the only solution to all these problems. But we are operating in a creative industries environment as a matter of intellect and as a matter of looking at the options that are available for the management and licensing and use and access of the products of intellectual endeavour – the open licence model is a very fine model, which is worthy of very close consideration.

I am expressing my personal views here. But I bring a wealth of experience from the public sector. My understanding and my experience has been that government is bringing quite an open mind to the degree to which it might utilise and implement these open licensing models. The reality is that government is, as Dr Cutler said, a very significant repository and custodian of major data sets. The citizenry have a right very often to access those databases. They are strategically important from a Government perspective. In fact they often arise – and this is what Anne Fitzgerald was alluding to – they often arise incidentally to the operation and provision of government services on a day-to-day basis. But they are strategically, fundamentally important to the efficient operation of government. The citizens of the State have paid, indirectly and directly, for the creation of those data sets.

Terry Cutler will take issue with me now about how that contribution by the public might be best recognised. I do not wish to put words in his mouth, but I suspect he would say, ‘let us just dispense with Crown copyright. It has already been paid for by the public once. Why should it be paid for again?’ Of course, the private sector and commercial enterprise and undertakings equally would have free access to that, so it becomes a question of balance. It is not a question of all or nothing, and I suspect Dr Cutler does not think that either. But the irritant, or the point on which we are refocusing in the public policy arena, is what balance we strike about accessing public sector intellectual property and, indeed, intellectual capital. I hope you will forgive me for that, but I just wanted to set it in perspective and it is not a question of all or nothing.

With respect to the CLRC, they are somewhat naïve to think that you either do have Crown copyright or you do not. Their view seems to be basically there is no good reason for it, so let us do away with it. I agree also with Terry Cutler about the importance of rational and considered debate on these topics. The UK has gone through that process. Significantly, and very often, critics and those in favour of the abolition of Crown copyright do not mention that under those other initiatives of reform, etc. a lot of the fundamental rights of government (if I can use that term) in fact are preserved under licensing regimes or whatever.

It is not as if the UK has just abandoned Crown copyright; it has not. It has achieved an objective with a better balance, enabling government to still conduct itself in, hopefully, an effective and efficient manner, but at the same time freeing up – and if I may say this as a practitioner in this space, I am all for that – the utilisation of very valuable public sector intellectual property assets. The moving, if you like, or the promotion – I like the word promotion – of those public sector assets, in a sense out into the private sector, all under collaborative arrangements, is a highly desirable outcome.

We want further commercial movement and activity in this State and in Australia as a whole.

I agree very strongly on a personal level with Terry Cutler’s comments.

Australia has dropped the ball in many respects. We can be doing so much better and we have such respect from around the world, if only we realised how highly regarded our software writers are, our creative people. We can do as good a job as anyone. With the light touch – and I am getting a bit political here – that government has displayed to date, primarily at the federal level, we might have done a better job had we been a little more pro-active and perhaps worked a little more closely in liaison between the private and public sectors.

Government is obviously a recipient of information as well as the creator and custodian of information. It is vitally important in my view that government does understand the open content licensing regimes because, as a recipient, for argument’s sake, of open source software, which government will undoubtedly increasingly take up, if for no other purpose other than the increased security which the technical experts assure me is available through open source, the government needs to be aware of the terms and conditions, the obligations that it is under when it receives that open source or open content material. In other words, Government needs to be acting in a responsible, lawful manner in accordance with its contractual obligations.

On that purely pragmatic basis of being a recipient of information – a simple example is the open source software – it needs to be mindful and aware of those conditions. On the other side of the coin is that it also needs to be aware of the possibilities offered by the Creative Commons, the open content licensing arrangements, which all had significant part in the open source software initiative, that is where the genesis was, because the open licensing arrangements afford governments significant opportunities to increase the accessibility to these data sets or its other intellectual property;

yet, at the same time, not simply relinquish unthinkingly its intellectual property rights.

As I said at the beginning, it is not all or nothing. It is not copyright or public domain. That is not the issue. The open licensing arrangements provide, as I see it, a very useful tool under which Government can rationally make available, more readily perhaps and I am not opposed to that at all, access to its information and data sets. For instance, without once again being political, the Queensland Government does have things called Information Standards. They have got an Information Standard No.

13, which deals with access to Government information. I am not saying that is a panacea. I am trying to say Government to some extent is starting to address these issues.

We also have Information Standards in relation to intellectual property more generally, so I am trying to say that Government is starting to think about these issues. They have been doing it for some time. A Smart State initiative has at its core a very significant emphasis on the collaboration between the private and public sectors, the promotion of public sector intellectual property out into the private sector in appropriate circumstances. Which is most instances, unless there is a good reason why the ownership should not be retained by Government. There is a whole debate about the intellectual property ownership in legal judgements and Acts, which I will not get into. That is a separate issue. But in these creative endeavours the multi-media world, etc. open licensing affords government a very real opportunity, through initiatives such as the spatial information industry, which deals with mapping information – say in a Department such as Natural Resources and Mining. And, if you think about it, the repositories of the data sets, say for mining, for land title information, etc. these are all extraordinarily valuable, important data sets.

They need to be managed properly.

The open content licensing regime enables Government, for instance, to give free access where appropriate to the citizenry, if there is a noncommercial use. We have heard all these issues before about who is the information to be made available to? Is it a commercial entity? If that commercial entity is going to make a profit, the public policy issue is, if the Crown can still retain the copyright in it, but enables that private sector entity to value add to that, to create further products, you know the jargon, derivative products, enhanced products, well that does not mean that the Crown’s intellectual property should just be abolished. It should be respected. It should be acknowledged under the open content licensing model. It does not mean an abolition of Crown copyright, but what it does do, it frees it up. It enables people to use it more readily on clearly understood terms and conditions.

In summary, government needs to understand the issues around open licensing regimes. Creative Commons provides a very exciting and useful model under the licensing and management regimes that government needs to seriously think about and there will be use made of it in appropriate circumstances. Let the debate begin as to where that should apply in relation to what material and how we best implement that in an effective and efficient way.


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