Professor Anne Fitzgerald QUT Faculty of Law, Brisbane, Queensland Digital Information Management Summit, Dockside, Darling Harbour, Sydney 10 November 2011

Some guiding principles For intangibles / digital materials, the law plays a greater – not a lesser – role in defining rights and obligations Openness (access/use/reuse) has to be structured / constructed - it does not happen by default - requires copyright and other interests to be actively managed to ensure the desired level of “openness” is achieved Absence of legal rights means just that (nothing) – if legal rights do not exist, the only control is through lock up (secrecy) or lock down (technological locks) Legal controls (copyright/trade secrecy) work alongside technical controls (hardware/software)

Understanding the concept of “ownership” Need to distinguish between different kinds of “ownership”: tangible medium (disk/server) on which the digital data is stored Custodianship Copyright – a property right - applies to a vast range of items, if they meet some criteria eg originality: text, videos, photos, sound recordings, complex datasets, databases entitlement to access/use / reuse right to keep the data secret (confidential)

Managing rights to enable information to flow Legal rights and obligations are potentially extensive, complex and confusing Data management is easiest in closed systems where you: own the data and are using it for your own purposes can effectively control the data and its use, including compliance with regulatory obligations eg privacy BUT, this is not what we are dealing with now – in open, interoperable systems, rights need to be managed to ensure information can flow

Impact on information management Increasingly complex environment of data and legal interests relating to it Essential to understand how rights and obligations apply to the data your organisation collects, manages, uses Rights of owner and rights of users to access/use/reuse need to be identified and actively managed Develop a strategy/plan/processes for managing legal interests in data

Prepare a Data Management Plan (DMP) Document the context Document the nature and scale of the data that will be collected/generated Determine ownership of copyright/IP and document this Record any responsibilities & obligations Document procedures & policies for Data collection / quality control Access Documentation & metadata Formats Storage & backup Data maintenance Disposal Bibliography management Data publication

Laws relevant to “ownership” of information Copyright Contract Confidentiality/trade secret laws Standards Privacy Public Records/Archives legislation Public Records Acts Domain specific laws eg mining exploration reports, environmental impact reports, water information

Copyright Copyright exists automatically in a vast range of content and informational works: – literary (including computer programs and compilations) – dramatic – musical – artistic – films – sound recordings – broadcasts – published editions Copyright owner has extensive rights: – copy – publish – publicly perform – electronically communicate (eg on internet) – broadcast Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08, CC-BY-NC-ND,

Copyright basics Governed by the Copyright Act (Cth) No registration required Copyright exists automatically once criteria in the Act are satisfied Copyright protects original expression Not ideas, information or facts But the form in which those ideas, information or facts are expressed

Copyright basics Copyright applies to an extensive range of materials Broad range of rights exercisable by copyright owner Copyright has been extended to protect Technology Protection Measures (TPMs) (eg encryption/anti-copying devices) on copyright materials; Electronic Rights Management Information (ERMI)

Copyright Bundle of exclusive rights: E.g. for Literary, dramatic and musical works Reproduce in material form Publish Perform Communicate to the public Make an adaptation or translation Control rental, where work is a computer program or is reproduced in a sound recording: s 31(1)

Copyright basics In Australia, copyright can be effectively enforced (civil and criminal remedies for infringement) As a result, the consequences of infringement will deter use/reuse unless it is clear that the use is permitted Importance of clear statement of permitted uses – to avoid infringement

Copyright in data compilations Copyright applies to data compilations if they are sufficiently original Copyright does not apply to mere facts/information or trivial/obvious/mundane arrangements of data Copyright must apply to original data databases – TRIPs and WIPO Copyright Treaty For copyright to apply, there must usually be originality provided by some independent intellectual creation/creative spark/application of skill and judgment No special legal protection for non-original data collections (cf European Database Directive)

Copyright in data compilations Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) – Federal Court, Justice Gordon where an author or authors of a compilation can clearly be identified; and it can be shown that the compilation is original in the sense that it is the product of some “independent intellectual effort”; the exercise of “sufficient effort of a literary nature”; involves a “creative spark”; or the exercise of “skill and judgment”, then it is likely to be protected by copyright. [2010] FCA 44 at [344] per Gordon J. AUSTRALIA

Computer-generated works Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) – Full Court of Federal Court (on appeal) Full Court affirmed that copyright did not subsist in Telstra’s white pages and yellow pages telephone directories for 11 regional areas, which are compiled by an automated computerised process centrality of authorship to the subsistence of copyright in works - it is necessary to show that the work originates from individual author /s who actually exist – no need to identify by name each and every author who has contributed to the production of the work Since the directories were compiled, not by the numerous individuals engaged to facilitate the process, but by the automated computerised process “of storing, selecting, ordering and arranging the data to produce the directories in the form in which they were published”, they lacked a human author and were not protected by copyright

There will also be copyright in any computer program that has been developed to display or manipulate the data Images, plans and designs are protected by copyright as ‘artistic works’ Videos and other moving images are protected by copyright as ‘cinematographic works’ Copyright in discrete data items may co-exist with copyright in the compilation of items. Copyright & Data

The public sector: the special case of Government (Crown) Copyright Vast amounts of government copyright materials Copyright applies to: Informational works Research outputs (reports, papers, databases) Cultural materials The same bundles of rights apply to government copyright materials as apply to privately produced materials Public Sector Information (PSI) in a broad sense includes material that is: created within government by government employees; produced externally by recipients of government funding; or prepared by non-government parties and lodged with government under a statutory obligation or regulatory direction.

Copyright use is based on licences or “permissions” (authorisations) Copyright law gives copyright owners the rights to authorise others to use their materials –permission to do specific acts Authorisation or permission is granted in licences Non-exclusive licences can generally be written or unwritten, explicit or implied from the circumstances; Exclusive licences should be in writing and signed; Some permissions have been generalised and codified as exceptions in the Copyright Act e.g. fair dealing Not yet possible to codify the permissions for many kinds of uses of copyright material – particularly the case for public sector materials – so licensing needs to be managed, and where appropriate, simplified by using standardised licences

Effective management of copyright interests in digital information Identify the work/s in question Is it protected by copyright? Is it sufficiently original? Is there an identifiable human author/authors Who is the owner of copyright? Creator If not an employee, has commissioned work been assigned? Employer Third parties – have permissions been obtained to use it? How are the rights to be managed? Transferred – entirely or in part Needs to be in writing and signed by assignor Licensed – exclusive, non-exclusive, sole Which rights are to be licensed? Who has authorisation to grant permissions/authorisations? Documentation of permissions/authorisations Written assignment (signed) Express (written) licence – may be in a standardised form, eg Creative Commons licences now the default for Australian government materials

Towards the digital economy Emergence of digital online economy since mid- 1990s and, introduction of fast broadband  online innovation and expansion of commercial activity Surging demand for new (digital) information/content products and services New online business models emerging Lawful remix and re-use of digital content  innovative new, value-added content and services Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08, CC-BY-NC-ND, /

Information pathways Complexity of information pathways: within government – among departments, agencies, different levels of government; between government and community: from government to community; from community to government to community; within the community – individuals, organisations from local to national to global Problem of “licence logjams” Copyright is exercised to control access, to prevent flow of information and to preserve commercial rights Often, there is no identification of owner and no licence, so access/use/reuse rights are unknown – high transaction cost of clearing rights in legacy materials or negotiating new licences Where licences exist, terms are incomprehensible or inconsistent Enabling information to flow requires appropriate policy frameworks/business strategies, and effective licensing practices

Putting Innovation centre-stage Information flow is a central part of the innovation agenda The value of information/content is in its use/re-use Credits: Background photo by danishwindindustryassociation, Woolnorth, Tasmania, CC-BY-NC,

Venturous Australia review of the Australian innovation system (2008) recommendations Open gate by chelmsfordblue (Nick) Australia should establish a National Information Strategy to optimise the flow of information in the Australian economy. The fundamental aim of a National Information Strategy should be to: maximise the flow of government generated information, research, and content for the benefit of users (including private sector resellers of information). A specific strategy for ensuring the scientific knowledge produced in Australia is placed in machine searchable repositories be developed and implemented using public funding agencies and universities as drivers. Information, research and content funded by Australian governments – including national collections – should be made freely available over the internet as part of the global public commons, to the maximum extent possible.

Venturous Australia (2008) Recommendation 7.8 Australian governments should adopt international standards of open publishing as far as possible. Material released for public information by Australian governments should be released under a creative commons licence.

OECD PSI Recommendation on access to PSI (2008) the “Openness” principle states: “Maximising the availability of public sector information for use and re-use based upon presumption of openness as the default rule to facilitate access and re-use. Developing a regime of access principles or assuming openness in public sector information as a default rule wherever possible no matter what the model of funding is for the development and maintenance of the information. Defining grounds of refusal or limitations, such as for protection of national security interests, personal privacy, preservation of private interests for example where protected by copyright, or the application of national access legislation and rules.” the “Access and transparent conditions for re-use” principle states: “Encouraging broad non-discriminatory competitive access and conditions for re-use of public sector information, eliminating exclusive arrangements, and removing unnecessary restrictions on the ways in which it can be accessed, used, re-used, combined or shared, so that in principle all accessible information would be open to re-use by all. Improving access to information over the Internet and in electronic form. Making available and developing automated on-line licensing systems covering re-use in those cases where licensing is applied, taking into account the copyright principle below.”

Victorian Parliament’s Economic Development and Infrastructure Committee (EDIC) Report, Improving Access to Victorian Public Sector Information and Data (2009)

Gov 2.0 Taskforce – “Engage: getting on with Government 2.0” chaired by Dr Nicholas Gruen, December 2009; Central recommendation: A declaration of open government by the Australian Government Recommendation 6: Make public sector information open, accessible and reusable [chapter 5, p 58] 6.1 By default, Public Sector Information (PSI) should be: free based on open standards easily discoverable understandable machine-readable freely reusable and transformable. 6.2 PSI should be released as early as practicable and regularly updated to ensure its currency is maintained. 6.3 Consistent with the need for free and open reuse and adaptation, PSI released should be licensed under the Creative Commons BY standard as the default.

Government’s response to Gov 2.0 Taskforce report Generally accepted Gov 2.0 Taskforce’s recommendations (12 out of 13) agreed in principle to Recommendation 6, including: 6.3 Consistent with the need for free and open reuse and adaptation, PSI released should be licensed under the Creative Commons BY standard as the default. Government’s response was released under a Creative Commons Attribution (CC BY) 2.5 Australia licence

Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08, CC-BY-NC-ND,

What is Creative Commons? a standardised system for licensing the use of copyright materials 6 standardised licences – available in plain english (summary), legalese and machine-readable versions Each licence grants a general permission to users to use copyright material – that is, to copy, publish, distribute in digital form, publicly perform – whether the whole or a substantial part of it on specified, standardised conditions Credits: Background photo by Matthew Knott, Tasmania CC-BY-NC-SA,

What is Creative Commons? You can use it on copyright materials you create; You can use copyright materials created by others that are licensed under CC Pallarenda north of town by Rob & Stephanie Levy

Standard CC Conditions of use Attribution (BY) – attribute the author, and no false attribution Non Commercial (NC) – no “commercial use” (as defined) No Derivatives (ND) – no changes allowed to original work Share Alike (SA) – changes allowed, but new work is to be distributed under the same licence as the original work Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08, CC-BY-NC-ND,

Combined in a standardised suite of licences BY BY-NC BY-SA BY-ND BY-NC-SA BY-NC-ND Credits: Background photo by photographerglen, Tasmania, CC-BY- NC-SA,

CC Licences BYAttribution BY-NCAttribution - Non Commercial BY-SAAttribution - Share Alike BY-NDAttribution - No Derivatives BY-NC-SAAttribution - Non Commercial - Share Alike BY-NC-NDAttribution - Non Commercial - No Derivatives

Clear and Simple BYAttribution BY-NCAttribution - Non Commercial BY-SAAttribution - Share Alike BY-NDAttribution - No Derivatives BY-NC-SAAttribution - Non Commercial - Share Alike BY-NC-NDAttribution - Non Commercial - No Derivatives

Commonwealth Government’s Statement of IP Principles (2010) 11.(b) Consistent with the need for free and open re-use and adaptation, public sector information should be licensed by agencies under the Creative Commons BY standard as the default. An agency’s starting position when determining how to license its public sector information should be to consider Creative Commons licences ( or other open content licences. Agencies should license their public sector information under a Creative Commons licence or other open content licence following a process of due diligence and on a case-by-case basis. Before releasing public sector information, for which the Commonwealth is not the sole copyright owner, under a Creative Commons BY standard or another open content licence, an agency may need to negotiate with any other copyright owners of the material.

Principles on open public sector information (OAIC, 2011) Principle 1: Open access to information - a default position Information held by Australian Government agencies is a valuable national resource. If there is no legal need to protect the information it should be open to public access. Information publication enhances public access. Agencies should use information technology to disseminate public sector information, applying a presumption of openness and adopting a proactive publication stance. Principle 6: Clear reuse rights The economic and social value of public sector information is enhanced when it is made available for reuse on open licensing terms. The Guidelines on Licensing Public Sector Information for Australian Government Agencies require agencies to decide licensing conditions when publishing information online. The default condition should be the Creative Commons BY standard, as recommended in the Intellectual Property Principles for Australian Government Agencies, that apply to agencies subject to the Financial and Management Accountability Act Additional guidance on selecting an appropriate licence is given in the Australian Government Open Access and Licensing Framework (AUSGOAL). l

Statement of new copyright licensing practice – Commonwealth Attorney-General’s website “In line with a recommendation of the Government 2.0 Taskforce Report, Commonwealth Government agencies are now required to release copyright public sector information under Creative Commons BY-licences or other open content licences, wherever possible. Government 2.0 Taskforce Report If you are seeking to use Commonwealth of Australia copyright material, this material in many cases should be available for use under a Creative Commons BY licence. If you are unsure whether a BY licence applies to the specific material that you wish to use, we recommend that you contact the agency which produced that material or, if that agency no longer exists, the current agency with the relevant policy responsibility. The Australia.gov.au website contains links to the websites of each Government agency. Agencies will shortly be posting information about their copyright procedures on their websites.Australia.gov.au For information about how Government agencies manage their intellectual property, refer to the Statement of Intellectual Property Principles for Australian Government Agencies. For further information about Creative Commons licences, see the Creative Commons website.’Statement of Intellectual Property Principles for Australian Government AgenciesCreative Commons website h_Copyright_Administration

Why use CC licences? Other standardised licences e.g. UK Open Government Licence (OGL) are not fully internationally recognised Permits international platforms (collaborations and contributions across various sectors) No other standardised licence has an equally supportive and viable central organisation CC applies to all government and non-government copyright material (except software) CC uses icons (which have gained full international recognition and which are not language specific) CC’s licence metadata / digital code is embedded, making it machine-readable, searchable & retrievable CC provides for a clear statement about the source of the data (attribution/provenance) – increased user confidence

Copyright licensing – traditional practice All (or most) rights reserved Requires prior permission from copyright owner unless within an exception to owner’s rights (e.g. fair dealing) under the Copyright Act Negotiating terms is cumbersome, time consuming, expensive – inefficiency means high transaction costs Has led to multiple non-standard licences Problem of “orphan” works – no identifiable copyright owner from whom permission may be obtained Arose from pre-internet era - not geared to the immediate and global nature of the internet

Features of CC licences Some rights only reserved Relatively short, simplified, standardised licences which provide permission in advance Do not contain detailed provisions covering all relevant aspects of the law Must be read in the context of copyright law (legislation & judgments) and often other relevant bodies of law (e.g. private international law – “jurisdictional” issues and applicable law) Also have to be read in context of other relevant “information” laws notably privacy (data protection), security, and interception of communications (telecommunications)

Some further reading... Internet and E-Commerce Law, Business and Policy, Anne Fitzgerald et al, 2 nd ed 2011 Thomson Reuters (Lawbook Co) Australian Media Law, Des Butler et al, 4 th ed 2011, Thomson Reuters – “Copyright” chapter by Anne Fitzgerald Reports and guides online at Practical Data Management: a policy and legal guide CC and Government Guide (2011)

Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08, CC-BY-NC-ND,