Copyright Licensing for Open Access Professor Brian Fitzgerald QUT Law Faculty OAK Law Project Leader

Context Journal Articles Electronic Theses Public Sector Information (PSI) or Government Materials Australian Creative Archive Data Management, Access and Reuse Education (Schools) Standards

Premise Open Access will not happen by default Needs to be facilitated Policy Practice/Culture Institutional Engagement Technical and Legal Framework Education and support Copyright [and Patent] is a key variable

Policy Relationships Tools Application Public Sector Institution Industry International Influences OPEN ACCESS TO KNOWLEDGE TREE External Expertise

Strategy Manage copyright for open access Put in place policy and systems that provide OA - [mandates] The role of the actors – such as authors/creators, institutions (including funders), industry, research community, end users Licensing is part of the strategy

Copyright Basics

Copyright Exclusive economic rights of copyright owner to (amongst other things) reproduce and communicate to the public Moral rights of the author Permission needed to do acts that come within exclusive rights of copyright owner Unless a permission is found elsewhere – e.g fair dealing, other exceptions, statutory licence

Copyright Owner Who is the copyright owner? Starting point - person who created copyright – but that person may have assigned copyright “in writing” to another entity Exception to this rule – if copyright is created in the course of employment – then the employer owns copyright

Licence A licence is a permission from the copyright owner to do acts that fall within the ambit of the exclusive economic rights It may be: - exclusive: the licensee only allowed - sole: licensee plus CR owner allowed - non exclusive: others can be given similar or other permissions

Publishing Agreements

Publishing Agreement I An academic employed by a university writes an article – are they funded by a grant? Research only – is it in the course of employment – what does the IP policy say? A researcher employed by a government department or independent research institute – writes an article in the course of their employment?

Publishing Agreement II Author/s assigns copyright to the publisher – in return for profile and status - rarely monetary reward The publisher is now the copyright owner? Did the author have the copyright to assign in the first place? Is the assignment evidenced in writing?

Publishing Agreement III Presuming the publishing agreement is lawfully concluded Publisher now holds the power over dissemination and importantly the right to communicate this publicly funded knowledge to the world

Publishing Agreement IV Publishing Agreement does not normally expressly say: “you can put your article in a repository” But many publishers – see SHERPA and OAKList – have policies formulated or can formulate them on request – that support deposit into a publicly available repository Would be simpler if the agreement stated this like it does for other things – or if the assignment was only partial not purporting to take these rights from the author

Publishing Agreements V Could we reconceptualise the agreement from an assignment to a non exclusive “license to publish” Protect the publisher’s interests in the licence – by prohibiting any other commercial publication?

Practices and Attitudes of Academic Authors  The Majority of Authors Enter into Assignment Agreements with Publishers (63%)  Minority of Authors (8%) – Prefer Assignments  Sizeable Number of Authors (32%) - Prefer to Retain Rights of Open Access in their Works through a Licence  Majority of Authors (54%) – Have No Preference between Assignment and Licence

Practices and Attitudes of Academic Authors Over 50% of Authors were Unsure if they were Allowed to Deposit into a Repository Under: –Their Past Publishing Agreements; OR -Their Most Recent Publishing Agreements  The Majority of Authors Do Not Insist Upon a Licence with Publishers - Over 50% Think that it is Too Much Trouble to Negotiate with Publishers  Almost One-in-Two Authors (49%) Do Not Understand the Terms of a Publishing Agreement but Sign it Anyway

Open Access and Reuse

What is OA Deposit Internet - searchable Access No Fee Format flexibility? DRM? Permission to Reuse? Can be practiced? Patents?

Why is reuse important? Further communication – networking knowledge Further research Serendipity Web 2.0 Education Application or Practice Other reasons

Clarifying reuse rights If you are the copyright owner or authorised by them you could apply a Creative Commons licence Permission in advance – given on condition – attribute author BY - use it in a non commercial manner NC – do no make derivatives ND – share improvement back to the public SA CC Licence Generator

Attribution: Other people may use, modify and distribute the work, as long as they give the original author credit. Non-commercial: Other people may use, modify and distribute the work, but for non-commercial purposes only. No derivatives: Other people may use and distribute the work, but can not modify it to create derivative works. Share alike: Other people may modify the work and distribute derivatives, but only on the condition that the derivatives are made available to other people on the same licence terms. This term can not be used with the No Derivatives term, because it applies only to derivative works. CC - Four Main Protocols

Backdrop – Copyright in the Digital Age - 2 Default Rules 1. General rule: you cannot do any act within the exclusive economic rights without the permission of the copyright owner 2. In the digital environment we automate the potential for reproduction and communication to the public through use For example: reading in real space is not an infringement – but to read in the digital environment we need to reproduce and communicate – the copyright zone

Minister Kim Carr – Open Access “We want the research conducted in universities and public research agencies to inspire and inform fresh thinking across the community. The more collaboration and interaction there is between researchers and the society around them, the better. It follows that research and research data should be widely disseminated and readily discoverable... The results of publicly funded research should be publicly available. … More accessible information equals more robust debate equals a stronger national innovation system.” “There is More than One Way to Innovate” 7 Feb

Venturous Australia Recommendation 7.10 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.

Strategic Management of CR at an Institutional Level Encourage or mandate [deposit] but also use copyright tools (e.g. licences) that facilitate this process and OA more generally For example – a non exclusive licence – that will allow deposit in a repository – and importantly that will allow reuse for designated purposes What role for the institution – in educating and possibly negotiating with publishers What response from publishers? Win-win solutions?

Electronic Theses

ETD Issues Generally copyright held by author – assignment? resources invested? Course of employment? Third party copyright in theses – how to clear when needed Have the student self manage copyright How to licence the thesis and any 3 rd part CR – can CC play a role

Public Sector Information

Potted History - Decade Cutler Reports IDC Report OSDM Productivity Commission “Cost Recovery” Submissions to CLRC Review 2004 GILF Project Stage 2 Report Pilot/Application by OESR, ABS and GA National Summits OECD PSI Principles 2008 Venturous Australia 2008

Our recent input Stage 2 Report of GILF Project – Access to Government Information and OCL – An Access and Use Strategy November 2006 – “Unlocking the Potential” E Bledsoe, J. Coates and B Fitzgerald Unlocking the Potential Through Creative Commons: an industry engagement and action agenda, August July 2007 – First National Summit – Qld Parliament House – Conference Report on the Australian National Summit on OA to PSI - March Second National Summit on OA to PSI 8FAA54754A2573D A?OpenDocument 8FAA54754A2573D A?OpenDocument

Power of Information E. Mayo and T Steinberg, The Power of Information (2007) (and UK Government response) < mation.aspxhttp:// mation.aspx The way government manages information is changing – blogs, user-generated input – administration and policy making, Howard and Rudd’s use of Myspace and YouTube – consultation - sites such as fixmystreet.com Richard Allan – Cisco – Chair of Power of Information Advisory Board – former MP in the UK Government sponsored competitions on data mashups Government asking people how they can share better Public Sector Information Unlocking Service (beta) service/OPSIpage.aspx?page=UnlockIndex service/OPSIpage.aspx?page=UnlockIndex

OECD Access to PSI Principles The Organization for Economic Co-operation and Development (OECD) released a new Recommendation of the Council for Enhanced Access and More Effective Use of Public Sector Information at its recent Ministerial Meeting on the Future of the Internet Economy (Seoul, June 17-18, 2008).... [The Council] recommends that, in establishing or reviewing their policies regarding access and use of public sector information, Member countries take due account of and implement the following principles... Recommendation of the Council for Enhanced Access and More Effective Use of Public Sector InformationMinisterial Meeting on the Future of the Internet Economy

OECD PSI Principles Openness. 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.... Access and transparent conditions for re-use. 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....

OECD PSI Principles Asset lists. Strengthening awareness of what public sector information is available for access and re-use.... Quality. Ensuring methodical data collection and curation practices to enhance quality and reliability... Integrity.... Developing and implementing appropriate safeguards to protect information from unauthorised modification... New technologies and long-term preservation. Improving interoperable archiving, search and retrieval technologies...

OECD PSI Principles Copyright. Intellectual property rights should be respected. There is a wide range of ways to deal with copyrights on public sector information, ranging from governments or private entities holding copyrights, to public sector information being copyright-free. Exercising copyright in ways that facilitate re-use... and encouraging institutions and government agencies that fund works from outside sources to find ways to make these works widely accessible to the public.

OECD PSI Principles Pricing. When public sector information is not provided free of charge, pricing public sector information transparently and consistently... Where possible, costs charged to any user should not exceed marginal costs of maintenance and distribution... Competition.... Requiring public bodies to treat their own downstream/value-added activities on the same basis as their competitors for comparable purposes... Promoting non- exclusive arrangements for disseminating information so that public sector information is open to all possible users and re-users on non- exclusive terms.

OECD PSI Principles Public private partnerships. Facilitating public- private partnerships where appropriate and feasible in making public sector information available... International access and use.... [P]romote greater interoperability and facilitate sharing and comparisons of national and international datasets. Striving for interoperability and compatible and widely used common formats. Best practices. Encouraging the wide sharing of best practices and exchange of information on enhanced implementation...

Venturous Australia 2008 Recommendation 7.7 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: –utilise the principles of targeted transparency and the development of auditable standards to maximise the flow of information in private markets about product quality; and –maximise the flow of government generated information, research, and content for the benefit of users (including private sector resellers of information).

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.

CRC SI project Literature Review Due to be released this week – 200 pages Starts with Australia and NZ - work on Europe, USA, Canada, International well advanced

Creative Archive

Access to Culture Access to culture is important o creativity, research and innovation Enormous amounts of copyright material held by publicly funded agencies – how can we create better access For research, practice, identity, enjoyment and reuse

Venturous Australia 2008 Recommendation 7.9 Funding models and institutional mandates should recognise the research and innovation role and contributions of cultural agencies and institutions responsible for information repositories, physical collections or creative content and fund them accordingly.

Data

Data Access and Reuse ANDS Data management plans Platforms for access Licensing Compilation of data gives rise to copyright in Australia – Ice TV currently before the High Court will consider this further but unlikely to alter the low threshold test for originality

Education (Schools)

Education Sector Copyright fees are rising rapidly and increasing the cost of school education Use of OA materials Creation of OA materials Digital Education Revolution Open Education Resources

Standards

IP and Standards Patents Copyright OA to Standards OAK Law has done a 200 page report on these issues which is being finalised – number of presentations in Australia and NZ

IMS GLC On 3 March 2008, IMS GLC announced the commencement of a pilot project exploring the use of Creative Commons licensing of interoperability specifications. Approval of the pilot project followed the review of an initial concept paper by the IMS GLC Board of Directors. The pilot project, run in conjunction with the New Zealand Ministry of Education, is to be supported by participants from IMS member organisations. The pilot project will refine the proposed approach and test it on an initial set of IMS GLC standards and projects in order to determine its effectiveness.

IMS GLC The press release announcing the pilot project explained that this was a departure from the copyright licensing practices traditionally used by standards organisations: “Historically, specifications and standards consortia have grappled with the need to be good stewards of the investments made by consortium members and achieving control toward interoperability in practice, while also engendering market innovation. IMS GLC has conceptualised a novel approach that may be applicable to many standards organisations. Today, almost all such organisations publish their specifications under standard copyright.”: See IMS Global Learning Consortium, IMS Global Learning Consortium Announces Pilot Project Exploring Creative Commons Licensing of Interoperability Specifications, press release, 3 March 2008; available at

IMS GLC In the press release announcing the pilot project, Rob Abel, CEO of IMS GLC commented: “We are pleased to be breaking new ground in achieving wider use of and innovation from open standards while still stepping up to achieving interoperability in practice. IMS Global has been working for two years now to put in place some key processes, such as open source tools for application profiling and testing, that will enable this new approach.”

Creative Commons

Minister Kim Carr “Creative commons The last big idea in the report I want to touch on is open access. It is embodied in a series of recommendations aimed at unlocking public information and content, including the results of publicly funded research. The review panel recommends making this material available under a creative commons licence through: - machine searchable repositories, especially for scientific papers and data - cultural agencies, collections and institutions, which would be funded to reflect their role in innovation - and the internet, where it would be freely available to the world. - It also argues that patent law should be tightened to ensure that the inventive steps required to qualify for a patent are considerable and that patents are well defined, leaving maximum scope for subsequent innovators.

Minister Kim Carr “This is consistent with steps I’ve already taken to revive work on the accessibility framework proposed – but never delivered – by the previous government. Australia takes justifiable pride in the fact that it produces 3 per cent of the world’s research papers with just 0.3 per cent of the world’s population, but that still means 97 per cent of research papers are produced elsewhere. We are and will remain a net importer of knowledge, so it is in our interest to promote the freest possible flow of information domestically and globally. The arguments for stepping out first on open access are the same as the arguments for stepping out first on emissions trading – the more willing we are to show leadership on this, we more chance we have of persuading other countries to reciprocate. And if we want the rest of the world to act, we have to do our bit at home.” 9 Sep 2008 REVIEW OF THE NATIONAL INNOVATION SYSTEM REPORT - VENTUROUS AUSTRALIA VATIONSYSTEMREPORT-VENTUROUSAUSTRALIA.aspx

Legal Standing of CC Licences Jacobsen v Katzer US Fed Circuit Court of Appeals - Jacobsen v. Katzer 2008 U.S. App. LEXIS (Fed. Cir. 2008).Jacobsen v. Katzer 2008 U.S. App. LEXIS (Fed. Cir. 2008) “Public licenses, often referred to as open source licenses, are used by artists, authors, educators, software developers, and scientists who wish to create collaborative projects and to dedicate certain works to the public. Several types of public licenses have been designed to provide creators of copyrighted materials a means to protect and control their copyrights. Creative Commons, one of the amici curiae, provides free copyright licenses to allow parties to dedicate their works to the public or to license certain uses of their works while keeping some rights reserved.”

Jacobsen v Katzer “Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago. For example, the Massachusetts Institute of Technology (MIT) uses a Creative Commons public license for an OpenCourseWare project that licenses all 1800 MIT courses. Other public licenses support the GNU/Linux operating system, the Perl programming language, the Apache web server programs, the Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia. Creative Commons notes that, by some estimates, there are close to 100,000,000 works licensed under various Creative Commons licenses. The Wikimedia Foundation, another of the amici curiae, estimates that the Wikipedia website has more than 75,000 active contributors working on some 9,000,000 articles in more than 250 languages” “There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.”

Conclusion The choices we make about copyright licensing – have an impact on information flow CC has become a key licensing tool in the Internet world When managing copyright issues – know your full range of options and how they can be best utilised Reuse is a key aspect

Publications OAK Law Project Report No. 1: Creating a Legal Framework for Copyright Management of Open Access within the Australian Academic and Research Sectors (August 2006) Copyright Guide for Research Students: What you need to know about copyright before depositing your electronic thesis in an online repository (May 2007) ents.pdfhttp:// ents.pdf Building the Infrastructure for Data Access and Reuse in Collaborative Research: An Analysis of the Legal Context (June 2007) Legal and Project Agreement Issues in Collaboration and e-Research: Survey Results (August 2007) A Guide to Developing Open Access Through Your Digital Repository (September 2007)

Publications Academic Authorship, Publishing Agreements and Open Access: Survey Results (May 2008) Understanding Open Access in the Academic Environment: A Guide for Authors (June 2008) International Study on the Impact of Copyright Law on Digital Preservation (July 2008) A joint report of the OAK Law Project, U.S. Library of Congress National Digital Information, Infrastructure and Preservation Program, U.K. Joint Information Systems Committee and the SURFfoundation in the Netherlands Legal Framework for e-Research: Realising the Potential (August 2008)

Further References B. Fitzgerald, A Fitzgerald et al Internet and E Commerce Law (2007) – Chapter 4 – especially B Fitzgerald et al (eds) Open Content Licensing: Cultivating the Creative Commons, (2007) Sydney University Press, Sydney B Fitzgerald “Structuring Knowledge Through Open Access: The Creative Commons Story” in C Kapitzke and B Bruce (eds.) New Libraries and Knowledge Spaces: Critical Perspectives on Information Education (2005) Lawrence Erlbaum and Assoc. 271 B Fitzgerald “The Role of Open Content Licences in Building Open Communities: Creative Commons, GFDL and Other Licences” (with N Suzor) in C Kapitzke (ed) Rethinking Intellectual Property (2007) Sense Publishing J Coates, “Creative Commons – The Next Generation: Creative Commons licence use five years on” (2007) 4:1 SCRIPTed 72

Further References B Fitzgerald, F Goa, D O’Brien and S Shi (eds), Copyright, Digital Content and the Internet in the Asia Pacific (2008) Sydney University Press B. Fitzgerald, “It’s vital to sort out the ownership of ideas” February 27, 2008, The Australian (Higher Education Supplement) ,00.html J Coates, N Suzor and A Fitzgerald Legal Aspects of Web 2.0 Activities (2007) B Fitzgerald, “Copyright 2010: The Future of Copyright” [2008] European Intellectual Property Review M Perry and B Fitzgerald (eds.) Knowledge Policy for the 21 st Century (2008) Irwin Law Canada (forthcoming)

PROJECTS OAK Law – Legal Framework for e-Research CRC – Spatial Information – OA to PSI ARC Centre of Excellence for Creative Industries and Innovation (CCi) including Creative Commons Clinic

Survey on legal & project agreement issues in collaboration & e-Research