Copyright Agency Meeting on Digital Publishing in Canberra

Staff of the Copyright Agency Limited will talk about the results of their digital publishing survey and new direct payments for authors, at a "CALconnect meeting" for members in Canberra, 27 July 2011.

In their Digital Publishing Trends Survey (May 2011), CAL found that about half the authors and publishers create digital products, but many publishers don't have a digital strategy.

CALdirect is a new system for distributing shares of fees collected on licensed work to the various rights holders. Previously CAL made just one payment, usually to the publisher, who then had to distribute shares to others (such as authors). The new system could change the balance of power between publishers and authors.

Got a question for CAL? Well you can ask it in person at CAL’s upcoming CALconnect meeting in Canberra on Wednesday 27 July – where you can discuss any CAL related questions you may have.

Eloise Nolan and Rosanna Arciuli from CAL’s Membership team will also be talking about our digital publishing survey, and CAL’s new way to pay members – CALdirect – and what it means for you.

CALconnect events are about sharing information and updates with members while also giving you the opportunity to meet up with other creators in your city. These meetings are open to all CAL members and provide an excellent opportunity to network, share ideas and talk about issues that are relevant to content producers. ...

From: "CALconnect meeting", Copyright Agency Limited, 2011

Copyright Reform for the Internet

The Australian Digital Alliance has released "Internet Intermediaries and Copyright: An Australian Agenda for Reform" (by Kimberlee Weatherall). This is a comprehensive 63 page study. Unfortunately it was released as a hard to read PDF file, so I have extracted the executive summary (appended). Also it is odd, given the subject matter, the report has no copyright notice:

Executive Summary

Digital Economy: the global network of economic and social activities that are enabled by platforms such as the Internet, mobile and sensor networks.¹

Australia aims to be a place where innovation in the Digital Economy happens.² Achieving this goal is essential to Australia"s future economic growth, productivity, and social well-being.³ It will require not just great digital infrastructure, and a population with the necessary skills and entrepreneurial spirit, but a legal environment conducive to investment in the technologies, products, and services that make up the Digital Economy.⁴

Copyright law is an important part of this legal framework. The goal of copyright law is to encourage the creation of artistic, intellectual, and scientific content, from books and datasets to movies, music, video games, software, and art, by granting to creators exclusive rights to exploit their creations. The creation of new content is an important part of a successful Digital Economy. But, as has been widely recognised, too much copyright protection (or too much intellectual property generally) "may discourage people from innovating because the pathways to discovery are blocked by other intellectual property owners".⁵

A critical set of actors in the Digital Economy who can be affected by over-broad copyright are the Internet Intermediaries. These are the companies that provide the basic infrastructure of the Internet, and that build and create the services and platforms of the Digital Economy. They include Internet Access Providers (IAPs), web hosts, the providers of online platforms for the creation and exchange of content (such as YouTube, WordPress, and Facebook) – and others perhaps not yet conceived. They are all "intermediaries" in the sense that they stand between customers or end-users, and originators of content or other material. They are not only direct participants in the Digital Economy, but enablers – they build the platforms and infrastructure that can enable other companies to innovate and to take advantages of the efficiencies of the online environment.

If Australia is to achieve its overall innovation goals, and fully realise the potential economic and social benefits of the National Broadband Network (NBN), it will need to ensure that its copyright law appropriately enables Internet Intermediaries to operate and to invest in creating Australia"s Digital Economy. It is difficult to determine in the abstract where the proper accommodation of competing interests in copyright lies. One guide is a comparison with similar countries – Australia"s competitors in the global Digital Economy.6 If Australia"s laws create a less conducive environment for a Digital Economy than the law of Australia"s competitors, this will put Australia at a disadvantage in attracting and retaining innovative digital companies.

Where Australia currently stands

Measured against other jurisdictions, Australia"s copyright law is both less coherent and less amenable to innovation in the Digital Economy. The present legal situation can be understood at a broad level using a basic "traffic light" metaphor: where RED means an activity involves a high risk of copyright infringement, ORANGE means the legal situation is unclear, and GREEN means a low or non-existent risk of copyright infringement (perhaps subject to the company fulfilling certain conditions, such as taking infringing material down on receiving notice).

Table 1: Summary Table: Risk of Copyright Infringement Activity

Table omitted

The legal reality in Australia is that fifteen years after the Altavista search engine was launched, a search engine can still not operate fully from Australia without facing a risk of copyright infringement. Five or six years after the launch of services like Facebook, YouTube and the WordPress blogging platform, the same applies to these Digital Economy companies and services. Current Australian law also creates an uneven playing field: carriage service providers face less overall legal risk than other Internet Intermediaries, even where they perform the same practical function.

Table 1 does not, however, give a full picture of the impact of copyright on innovation, for two reasons. First, it focuses on online activities that we already know about. Innovation is, by definition, doing new things. Doing what is now known – following on from existing, often foreign innovations – is not enough: Australia needs to generate new ideas that can take on the world. Creating the environment in which people can come up with these new ideas, and pursue them through to commercialisation, depends in part on ensuring the law provides some room to experiment.

Australian copyright law provides no such room. By contrast, US law provides two important flexibilities for Internet Intermediaries: the fair use exception, which allows for non- infringement based on a balancing of factors (like the impact of an activity on the market), and the ‘Sony doctrine" – the rule that a person who provides services or technology that has "substantial non-infringing uses" will generally not be held liable for its customers" infringements.

Solutions

To provide an appropriate legal environment to enable greater innovation in the Australian Digital Economy, two critical changes are needed.

Extend the Safe Harbours

First, Australia should extend its copyright Safe Harbours to benefit all online service providers.

Copyright and Internet Intermediaries: An Australian Agenda for Reform indeterminate legal risk. Extending the Safe Harbours would not, however, be sufficient to create a favourable environment for innovation, because entrepreneurs wanting to introduce new, unanticipated services and products would have little room to move.

Introduce a Flexible Exception into Copyright

Second, Australia should introduce a flexible exception into copyright, in order to promote innovation, create room for experimentation and move from a "permission to innovate" culture to one conducive to taking risks and trying new things, at least where the impact on copyright owners" economic interests is small. This could be done by:

1. Introducing an exception for fair dealing for the purpose of "transformative use" (or some variation); or
2. Introducing an open-ended fair dealing exception modelled on fair use as found in US copyright law; or
3. Introducing a new s 200AB-style semi-flexible exception (or expanding the operation of the existing s 200AB): for example, specifying Internet Intermediaries as another kind of entity that gets the benefits of being allowed to do activities provided they do not contravene the "three step test" in international law.

Of these, using s 200AB is the least desirable option due to its complexity. Options 1 and 2 are similar. Both would help ensure that Australian law properly enables the key technical processes that underpin the operation of the Internet and common online services, as well as ensuring that Australian law provides room for appropriate innovation to spur a thriving Digital Economy.

If Australia chooses not to introduce a new flexible exception, at the very least, Australia should introduce one or more new specific exceptions to address problems identified in this Policy Paper to allow known activities that do not unjustifiably harm copyright owners. To address the gaps identified in this Policy Paper, specific exceptions would be needed to allow at least:

1. Caching, including proxy and system-level caching;
2. Web Hosting (including Cloud Computing);
3. Hosting a User-Created Content Platform (with an exception to allow individuals to make user-generated content); and
4. Operating a Search Engine.

Some reform to address these activities, currently not allowed under Australian law, would be better than nothing, to at least enable local versions of known services online. However this would do little to encourage future innovation in the Australian Digital Economy.

Contents

Executive Summary .. 1
Where Australia currently stands . 2
Solutions 4
Extend the Safe Harbours .. 4
Introduce a Flexible Exception into Copyright 5
1 Background Material . 7
1.1 Terminology: who are the Internet Intermediaries? . 7
1.2 Exceptions in context: the scope of exclusive rights and secondary liability 8
2 The impact of the copyright law on common online activities 11
2.1 Providing network access (internet access providers) . 11
2.2 Caching . 14
2.3 Hosting Content . 19
2.3.1 "Traditional" Web Hosting 20
2.3.2 Cloud Computing .. 22
2.3.3 Hosting a User-Created Content Site . 23
2.4 Search Engines: Web Crawling, Indexing and Display of Results . 25
And then there"s the future 28
2.5
3 Advancing the Digital Economy: What Australia Should Do .. 31
3.1 Extend the kinds of entities entitled to Safe Harbours to all online service providers .. 31
3.2 Introduce a flexible exception into Australian copyright law .. 31
3.2.1 Option 1: Fair dealing for the purposes of transformative use .. 33
3.2.2 Option 2: A Fair Use/Open-ended Exception 34
3.2.3 Option 3: Extending 200AB 35
3.2.4 Assessing the options . 37
3.3 Specific amendments 38
4 Conclusion .. 39
Appendix 1: Australia's Digital Exceptions Compared .. 40
Introduction and Summary . 40
Exceptions to liability for (temporary) reproductions .. 41
Liability for transmission (communication) and exceptions .. 46
Summary and commentary on the exceptions covering basic digital and network technology
50
Appendix 2: Australia's Safe Harbours Compared 51
Appendix 3: Australia's Exceptions for Creative Re-use and Personal Copying Compared . 57
Creative re-use .. 57
Private copying . 62

...


From: Internet Intermediaries and Copyright: An Australian Agenda for Reform, Kimberlee Weatherall, Australian Digital Alliance, April 2011

Creative Commons for Government

QUT have provided a "CC & Government Guide: Using Creative Commons 3.0 Australia Licences on Government Copyright Materials". This follows the seminar on government use of open access at Parliament House last month (which I spoke at). Presenters slides from the seminar are also available.

Abstract

This guide explains how copyright law applies to Australian government material, how copyright can be managed to facilitate beneficial open access practices by government, how CC licences can be used to achieve open access to government material, and provides practical step-by-step guidance for agencies and their officers on licensing and use of government copyright materials under CC 3.0 Australia licences.

Contents

1 Who should read this?3
2 Government Material / Public Sector Information 4
3 Intellectual Property Policies and Standards5
4 Open Access6
5 Copyright 8
5.1 Copyright ownership 17
5.2 The rights of copyright owners 21
5.3 Copyright licensing 22
5.4 Why a copyright-based licensing approach?23
5.5 Creative Commons Public Domain Tools26
5.5.1 Creative Commons Zero (CC0)27
5.5.2 Public Domain Mark (PDM) 27
5.5.3 CC0 and PDM28
5.6 Current licensing practices 28
6 Enabling Open Access: Creative Commons 30
6.1 Open (content) licensing 30
6.2 Creative Commons licences 31
6.3 How Creative Commons licences operate 34
6.4 Advantages of Creative Commons licensing 37
6.5 Changes introduced by version 3.0 of the CC licences 42
6.6 Legal application: How to use Creative Commons? 45
6.7 Technical application: How to apply Creative Commons? 62
7 Final checklist 72
8 Factsheets 73
9 Further information 81
10 Appendices 82
Appendix I: Intellectual Property Policies and Standards 82
Appendix II: Which CC Licence is right for me? 87
Appendix III: CC Legal Code, Attribution 3.0 Australia licence 88
Appendix IV: Table 1 – Creative Commons 3.0 Australia Licences – Minimum Markings,
Copyright Licensing Statement and Attribution Statement 93

From: CC & Government Guide: Using Creative Commons 3.0 Australia Licences on Government Copyright Materials, Fitzgerald, Anne M. and Hooper, Neale and Foong, Cheryl, QUT, November 2010

Open Access at ANU

Greetings from Parliament House in Canberra, where the seminar "Using Creative Commons in the Public Sector: Open Access to Knowledge, Culture and Public Sector Information (PSI)". Colin Steele, former ANU Librarian talked on issues with creative commons for research publishing. He expressed concerns over the effects of the new Excellence in Research for Australia scheme (ERA) on open access.

I gave a five minute impromptu talk after Colin, on how I use Creative Commons licensing for teaching. I started by explaining how ANU now accepts that course material can be released under a Creative Commons licence, as part of its open access policy. Then I detailed how I use a web search to find avialable open access material for teaching. In the case of training Australian Government employees and contractors, it is very useful to have HTML based government policy documents and manuals. This way students can work directly with the latest material. I forgot to mention how easy it is now to use web based material in e-learning systems and to create e-books. I will be teaching this in January 2011, at ANU: COMP7420: Electronic Data Management.

Australian Public Service Transitioning to Creative Commons

Greetings from Parliament House in Canberra, where the seminar "Using Creative Commons in the Public Sector" is on. Helen Daniels, Assistant Secretary, Copyright Law Branch, Attorney-General’s Department is outlining the "New Intellectual Property Guidelines and the Role of Agencies". The default will now be that government material is released with a Creative Commons "by" licence. Previously AGs administered a central register of licences for specific government documents. Under the new policy, agencies need to decide if material should not be CC, when it is created. So the AGs main task is to educate agency staff as to what to do. There is "Intellectual Property Principles for Australian Government Agencies" on the AGs web site. More material will be released in December. I hope to be able to use this material in teaching the ANU course COMP7420: Electronic Data Management from January 2011.

Electronic Records Management Needed for ABC Pool

Greetings from Parliament House in Canberra, where the seminar "Using Creative Commons in the Public Sector" is on. Sherre DeLys, Founder/Executive Producer, ABC Pool, just mentioned they have run out of storage. She said that they will now need to work out how to remove duplicated data and how to delete what was no longer needed. The ABC 2004-2007 Corporate Plan had the target to "Establish and implement a Corporation-wide records management system that meets legislative requirements.". The ABC 2007 Annual Report stated that this had been achieved. Pool may not be able to use the same corporate system, but should be able to obtain advice from the records management professionals in the ABC and use similar techniques and standards. Or they could enrol in my course in January 2011, at ANU: COMP7420: Electronic Data Management. ;-)

Wordpress plugin for museum content

Greetings from Parliament House in Canberra, where the seminar "Using Creative Commons in the Public Sector" is on. Seb Chan, Head of Digital, Social and Emerging Technologies, Powerhouse Museum, just mentioned they will be releasing a Wordpress plugin to allow metadata from the musium collection to be automatically included in blog posts. They also have been participating in the Museum Metadata Exchange (MME) project. He gave an an example of a possible mash-up would be to include historical photos from the museum with development application to the Mosman Council.

Sydney Android Rangers

Greetings from Parliament House in Canberra, where the seminar "Using Creative Commons in the Public Sector" is on. Bernard de Broglio, Internet Coordinator, Mosman Municipal Council just explained how their council rangers will be issued with Google Android smart phones next week.

Hansard in e-Book Format

Greetings from Parliament House in Canberra, where the seminar "Using Creative Commons in the Public Sector: Open Access to Knowledge, Culture and Public Sector Information (PSI)". Roxanne Missingham, Australian Parliamentary Librarian, discussed the use of Creative Commons licensing for parliamentary materials. She also mentioned in passing that there had been numerous recent requests for Hansard (the record of Parliament) in e-book format. This is driven by the availability of the Apple iPad. The EPUB e-book format is based on HTML and so it would be relatively simple to produce as a by-product of a web based Hansard. This is something I could cover in my course in January 2011, at ANU: COMP7420: Electronic Data Management.

Creative Commons from Parliament House

Greetings from Parliament House in Canberra, where the seminar "Using Creative Commons in the Public Sector: Open Access to Knowledge, Culture and Public Sector Information (PSI)" just started. Senator Kate Lundy, Parliamentary Secretary to the Prime Minister, was to open the seminar, but is in an extended Senate session on the National Broadband Network (NBN). This makes the seminar topic of access to information very timely, as to get maximum value out of the NBN, the community needs access to information carried on it.

Professor Brian Fitzgerald, Queensland University of Technology, introduced, Professor Anne Fitzgerald (his sister and also from Queensland University of Technology), as the first speaker. She mentioned that ANU has released an open access policy, also the Declaration of Open Government, by Lindsay Tanner, Minister for Finance and Deregulation (16 July 2010).

Later speakers planned are:

10:40am - 11:00am	Neale Hooper, Queensland University of Technology	Creative Commons and Government
Case Studies: public sector
11:00am - 11:20am	Donna Nicholson, A/g Assistant Statistician, Integrated Collections & Dissemination Division, Australian Bureau of Statistics	Case Study: Australian Bureau of Statistics
11:20am - 11:40am	Roxanne Missingham, Australian Parliamentary Librarian	Case Study: Australian Parliament
11:40am -12:00noon	Bernard de Broglio, Internet Coordinator, Mosman Municipal Council	Case Study: Mossman Municipal Council, Sydney
12noon-1pm	Lunch
Case Studies: educational, cultural and creative
1:00pm -1:20pm	Seb Chan, Head of Digital, Social and Emerging Technologies, Powerhouse Museum	Case Study: Powerhouse Museum
1:20pm - 1:40pm	Sherre DeLys, Founder/Executive Producer, ABC Pool	Case Study: ABC Pool
Implementing Open Access
1:40pm - 2:00pm	Colin Steele, Emeritus Fellow, Australian National University	Creative Commons in research and education
2:00pm - 2:20pm	Richard Best, Legal Advisor, NZ State Services Commission	New Zealand Government Open Access and Licensing Framework (NZGOAL)
2:20pm - 2:40pm	Helen Daniels, Assistant Secretary, Copyright Law Branch, Attorney-General’s Department	New Intellectual Property Guidelines and the Role of Agencies
2:40pm - 2:50pm	Cheryl Foong, Queensland University of Technology	Guide to Creative Commons and Government
Wrap up
2:50pm - 3:00pm		Closing comments

DRAFT

ps: I noticed a locust crawling around the senate hearing room. I am not sure what omen this is. ;-)

Creative Commons in Parliament House

Senator Kate Lundy, Parliamentary Secretary to the Prime Minister, will be opening the seminar "Using Creative Commons in the Public Sector: Open Access to Knowledge, Culture and Public Sector Information (PSI)" will be held in Parliament House, Canberra on Friday 26 November 2010. The seminar is free, but RSVP to cheryl.foong@qut.edu.au

Here is a copy of the draft program converted to HTML:

Using Creative Commons in the Public Sector: Open Access to Knowledge, Culture and Public Sector Information (PSI)

Chair: Professor Anne Fitzgerald, Queensland University of Technology

Friday 26 November 2010, Parliament House, Canberra

On the back of the growing capacity of networked digital information technologies to process and visualise large amounts of information in a timely, efficient and user‐driven manner, there has been an increasing demand for better access to and re‐use of public sector information.

Launching the Declaration of Open Government on 16 July 2010, then Minister Tanner said that it “lays an important foundation in implementing our Government 2.0 agenda”:

[I]t acknowledges that the internet holds a crucial role in realising a more open and transparent form of government in this country. The Declaration is about making more government information available to the public online, and encouraging reuse of that information in new, valuable and potentially unexpected ways. It is about giving Australians more of a say in forming the policy and delivering the services that have an influence on their lives. It is about enabling government agencies and individual public servants to be more innovative and more responsive to input and feedback, while still maintaining the high ethical and professional standards we expect. 1

The Hon. Senator Kate Lundy, Parliamentary Secretary to the Prime Minister, who has agreed to deliver the opening address, has stated:

Open access to government data can dramatically increase the value created from the data both socially and economically [and] the society as a whole benefits from access to the data. 2

This one day seminar, chaired by Professor Anne Fitzgerald of Queensland University of Technology, will explain, through practical case studies, how government agencies may put Creative Commons licensing and Open Access policy into action. It will facilitate the implementation of current government IP policy within the operational practices of agencies.

1. Declaration of Open Government, Lindsay Tanner, Minister for Finance and Deregulation, issued 16 July 2010, at http://agimo.govspace.gov.au/2010/07/16/declaration‐of‐open‐government/.
2. Free and Open Source Software for Geospatial Conference 2009.

DRAFT

Using Creative Commons in the Public Sector: Open Access to Knowledge, Culture and Public Sector Information (PSI)

Date: Friday, 26 November 2010
Time: 10 am to 3pm
Location: Parliament House, Canberra
Entry: Free (please RSVP cheryl.foong@qut.edu.au by Monday 22 November 2010)

Programme

Introduction
10:00am - 10:20am	Senator Kate Lundy, Parliamentary Secretary to the Prime Minister and for Immigration and Citizenship	Opening Address
10:20am - 10:40am	Professor Anne Fitzgerald, Queensland University of Technology	Overview of the development of Open Access Policy in Australia 2000-2010
10:40am - 11:00am	Neale Hooper, Queensland University of Technology	Creative Commons and Government
Case Studies: public sector
11:00am - 11:20am	Donna Nicholson, A/g Assistant Statistician, Integrated Collections & Dissemination Division, Australian Bureau of Statistics	Case Study: Australian Bureau of Statistics
11:20am - 11:40am	Roxanne Missingham, Australian Parliamentary Librarian	Case Study: Australian Parliament
11:40am -12:00noon	Bernard de Broglio, Internet Coordinator, Mosman Municipal Council	Case Study: Mossman Municipal Council, Sydney
12noon-1pm	Lunch
Case Studies: educational, cultural and creative
1:00pm -1:20pm	Seb Chan, Head of Digital, Social and Emerging Technologies, Powerhouse Museum	Case Study: Powerhouse Museum
1:20pm - 1:40pm	Sherre DeLys, Founder/Executive Producer, ABC Pool	Case Study: ABC Pool
Implementing Open Access
1:40pm - 2:00pm	Colin Steele, Emeritus Fellow, Australian National University	Creative Commons in research and education
2:00pm - 2:20pm	Richard Best, Legal Advisor, NZ State Services Commission	New Zealand Government Open Access and Licensing Framework (NZGOAL)
2:20pm - 2:40pm	Helen Daniels, Assistant Secretary, Copyright Law Branch, Attorney-General’s Department	New Intellectual Property Guidelines and the Role of Agencies
2:40pm - 2:50pm	Cheryl Foong, Queensland University of Technology	Guide to Creative Commons and Government
Wrap up
2:50pm - 3:00pm	Professor Brian Fitzgerald, Queensland University of Technology	Closing comments

DRAFT

ANU Open Access Policy

The Australian National University has released a new version of its Intellectual Property Policy and Guidelines to encourage open access to academic material, while staff still retain copyright on their material.

This is an issue which has been contentious at many universities. An example is Cambridge University, where I drawn into the discussion when I wrote an item about IP at Cambridge, which was cited in the internal debate.

Even where universities, such as ANU, have an open access policy, it can be difficult negotiating suitable arrangements at working level. One simple solution I use is to place a Creative Commons license on the courses and articles I write. I usually use the Creative Commons Attribution-ShareAlike 3.0 Australia licence. With this licence I retain the right to be acknowledged as having created the material, but the ANU can make use of it and change it, without paying me any extra fee (as can anyone else). The only significant restriction is that if the university creates an improved version, they have to make it available to me, or anyone else, who wants to use it.

Use of a Creative Commons licence is acceptable to the ANU's lawyers, which comes as a surprise to many, who assume the university requires authors and course designers to sign away their intellectual property rights. Even so, it is a good idea to make sure you include the licence on every document you create for a course, or article, so that even if it is accidentally put into a template having a corporate copyright notice on it, your rights will be protected.

The licence I use allows the ANU to modify and use the course materials I have created. It also allows me to develop new versions of the material for use elsewhere. This allows me to draw on other open access material to use in courses. Using Open Access material save a lot of time negotiating licenses and arranging to pay fees for material used in courses (Google provide a special search for open access material).

Universities continually generate and transmit knowledge to society through research, education and academic publication. The ANU has a primary function of "advancing and transmitting knowledge, by research and teaching of the highest quality".[1]

Intellectual property rights ("IP") created from such activities give rise to the need for management through an IP policy. IP created in a university context usually (although not always) takes the form of copyright material or new inventions, and the knowledge embodied in IP offers additional opportunities for dissemination of knowledge for the benefit to society. Members of the university community have an interest in IP being managed to support the university mission outlined above, as well as a potential interest in equitable arrangements for the sharing of benefits from the commercialization of IP. The Intellectual Property Policy 2010 updates the University's 2002 framework for management of IP.

As in past policy, employees will generally own copyright in their scholarly works. Otherwise, (again as in past policy) the University will own IP created by employees. Students generally, and Higher Degree Research Students in particular, own all IP they solely create. Policies relating to the right of students to have their thesis examined and to copyright in their thesis remain in effect. The new policy permits the University to acquire the IP of a HDR Student. If such a situation arose, the student would be entitled to share in commercialisation benefits, in the same way as an employee.

A major aspect of the policy is its provisions relating to commercialization (Part 5). These provisions provide processes for effecting commercialisation and for sharing of benefits with originators. ...

From: Guidelines, ANU, Interllectual Property, 1 July 2010