National Dimensions of the Public Domain: Creating commons-ism in one country? Presented by Philip Chung Graham Greenleaf, Professor of Law, UNSW; Co-Director, AustLII & CyberLPCAustLIICyberLPC David Vaile, Executive Director, CyberLPC CyberLPC Philip Chung, Executive Director, AustLIIAustLII

Overview Terminology for public rights in © – Dichotomy or continuum? What creates commons? – Legislation - Expropriation - Licensing National Dimensions of Commons – 4 tasks in building Australia’s © commons

Public rights in copyright? Starting point: Copyright in Australian law has always recognised public rights in works – © law protects only a limited ‘bundle of rights’ for authors - all other uses of works are permitted to the public – © law therefore assumes a wide range of public rights - permitted uses (eg right to lend books) and exceptions to rights (eg fair dealing rights) – Copyright Law Review Committee argued (2001) that these exceptions to © are ‘fundamental to defining the copyright interest’ – This approach treats © as a limited monopoly, granted in the public interest in order to encourage creativity

Public rights in copyright? ‘Maximalist’ extremist view: Public rights are a historical accident, all uses should require consent Abolitionist extremist view: Copyright is theft / unnecessary / unenforceable Most Australian organisations and commentators are at neither extreme, and recognise the validity of both private and public interests in works This presentation proceeds on that assumption of moderation …

Terminology for public rights No accepted terminology yet for the public rights aspects of works which are also to some extent subject to private © interests (1) The expanded notion of ‘public domain’ – Old notion of ‘public domain’: works in which © had expired, and which therefore had NO private rights remaining – ‘Public domain’, some now argue, should be redefined to include all aspects of works that © does not protect – ‘Public domain’ then becomes a positive slogan for those who wish to defend or extend the public aspects of works

Terminology for public rights (2) ‘Creative commons’ used to describe a ‘new’ element – public rights created by voluntary licensing by © owners – Explicitly based on recognising the co-existence of public and private rights in works (‘some rights reserved’) through a series of licences creating various limited rights – associated with the US Creative Commons (headed by Lessig from 2001)Creative Commons – Internationalised via ‘iCommons’ associates such as iCommons Australia (based at QUT)iCommons Australia – Little difference in philosophy and approach from other approaches to licence-based public rights Eg AEShareNet in Australia’s TAFE sectorAEShareNet

Terminology for public rights (3) ‘Open content’ [open source, open standards - closely related] – Broader definition includes all content that can be freely copied (eg Wikipedia defn.)Wikipedia defn – Narrower definition requires content not just to be freely available, but also includes the ability to adapt and change the work (eg Openflows defn)Openflows defn ‘[creative] commons’, ‘public domain’ and ‘open content’ often interchangeable - terminological confusion is common

Terminological clarification? Starting point: recognising the continuum of public and proprietary rights in works – [full] ‘public domain’ (old sense) is at one end - ‘no rights reserved’ (even then, moral rights remain) – In theory, full proprietary rights would be at the other end Except there is nothing there! – Proprietary works which are subject only to the statutory public rights, are only toward the other end, but each type of work differs, as each is subject to different public rights – In between are all works with some additional public rights created by voluntary licensing of rights to the public, but ‘some [proprietary] rights reserved’

Terminological clarification? - Some implications There is no public/private dichotomy, just a continuum – In fact, it is a multi-dimensional continuum, because works can vary along many different dimensions – Dimensions include exclusive rights, duration etc Essential to recognise how flexibly terms are used – We use ‘commons’ to refer to wherever there are more public rights than the statutory minimum - very broad Advocates for public and private rights can disagree on one dimension while agreeing on another - ‘public domain’ or ‘commons’ issues are not all or nothing – This is apparent from what can alter the continuum …

What creates commons? What types of actions change the location of works on the copy-rights continuum? – (1) Legislation - changing definitions – (2) Legislation - creating compulsory licences – (3) ‘Friendly Expropriation’ + acquiescence – (4) Voluntary licensing All of these actions can create public rights beyond the statutory minimum (commons)

What destroys commons? What removes material otherwise in commons? – Some legislation – Some technology locks it up – Contracts can do so

(1) Legislation - changing definitions: altering the continuum Extension of © term to 70 years – ‘term extension’ contracts public rights Changes to the definition of ‘fair dealing’ – Moves proprietary works more toward the centre Abolition of Crown © – Expands public rights - benefits many publishers Should works published on Internet be presumed ‘free for education’? – Aust. Ed. Dept (DEST) suggestion

(2) Legislation - compulsory licences: altering the continuum New or expanded compulsory licences – Expands public rights but may profit © owners – The history of collecting societies: bitter resistance; followed by acceptance and sustainable profit – Lessig (Free Culture): Major US innovation-based industries were based on ‘piracy’, often followed by a compulsory licence to make them ‘legit’:piracy The recording industry - mechanical reproduction right Cable TV rebroadcasts - 30 years, then a compulsory licence Radio - broadcasting of sound recordings - no protection at all (Lessig’s Free Culture (Penguin) is available free under a Creative Common (CC) licence in numerous formats)numerous formats

Legislation - compulsory licences: altering the continuum Commons require organisation – They do not occur spontaneously – Lessig’s examples also show where a commons element has provided an organisational structure previously absent, from which all sides subsequently prosper – Benkler’s work on commons-based modes of production explore which structures work

(3) ‘Friendly Expropriation’ + acquiescence: altering the continuum Some de facto ‘compulsory’ licences result from general acquiescence in uses of works which might be © breaches – Search engines copy works to make concordances; Google cache takes this further – Google Print similarly Google Print – CommonLII re legal materials from Commonwealth countries CommonLII ‘Friendly expropriation’ can create a commons without a statutory licence

‘Friendly Expropriation’ + acquiescence: altering the continuum Conditions for ‘Friendly Expropriation’ to succeed in creating a commons: – The commons organises the content better – The public benefits from the service – The © position of works covered is mixed (only some protected) and/or unclear – At least some © owners will benefit from the use being made; few if any will suffer significantly – An opt-out mechanism is provided – Opting out is unattractive (makes © owners look mean- spirited) so it only affects a minority

(4) Voluntary Licensing: altering the continuum Positive acts of licensing by © owners can move works more toward the public domain end of the spectrum - ‘some rights reserved’ Examples – AESharenet licences (FfE and others) – Creative Commons licences – Open Source software licences – Public licences of Crown © works (eg NSW licences to the public of legislation and cases)legislation and cases

National Dimensions of Commons ‘Unlocking IP’ - a project on building and preserving Australia’s © commons ‘Unlocking IP’ – Linkage - Industry grant by Australian Research Council ; A$200K p/a – 10 IP academics, 3 others, 6 industry partners based at UNSW Cyberspace Law and Policy Centre – Will attempt a comprehensive look at the relationship between public and private rights in © – Main Qs: How does it make sense to talk about Australia’s public domain or commons?; What steps are needed to preserve and expand them?

4 tasks in ‘unlocking IP’ 1: Analysing public rights - theory and taxonomy 2: Making public licences understandable and consistent 3: Making works findable 4: Devising incentives to create public rights

Task 1: Analysing public rights - theory and taxonomy Is an Australian commons theory needed? – Most commons theories (particularly Lessig’s) are from the context of US © and constitutional law, and institutions – We need approaches free of US legal concepts: the 1st Amendment, ‘fair use’ and maximalism – We need specific problems of Australian law accommodated How are moral rights accommodated? How can public licensing be legally effective here? A taxonomy of public rights – How does one licence differ from another? – How do various commons licences relate to collecting society and publishers’ licences?

Task 2: Making public licences understandable and consistent How can potential users (authors and the public) understand public licences? – Are high level attributes informative enough? – Compare AESN (including FfE) and CC attributesAESNFfECC How important / achievable is national consistency across schemes? – Compared with maximum flexibility through competing licence schemes? How important / achievable is international consistency? – iCommons is a major effort to achieve this – But at the price of translating from a US model

Task 3: Making works findable  How can potential end-users find works subject to public licences?  commons require organisation Is some form of registration workable? – Problems of multiple systems of public licences – Potential DOI application Can web spiders / search engines find digital works with some consistent code embedded? – CC search engine - dedicated web spider CC search engine – Need an Australian search engine to search web and multiple Australian public rights registries – How would this relate to global subject-oriented approaches?

Task 4: Devising incentives to create public rights How to encourage © owners to create public rights? ‘Vanity press’ inducements (eg SSRN)?SSRN What open content business models are viable? Requirements for works created with public funding (eg much academic work) to be publicly available Pro-active ‘acquisition’ of a © ‘national estate’ from authors willing to donate to the commons – not to the ‘nation’ but to the public – as if ‘term extensions’ had not happened When is ‘friendly expropriation + acquiescence’ feasible? - conditions and possibilities

Summary Private property and the public domain are not a dichotomy Works can be located along a continuum – legislation, expropriation, licensing ‘Unlocking IP’ project – mapping, preserving and extending the content and contours of Australia’s commons

References Benkler Y ‘The Political Economy of Commons’, Upgrade, Vol. IV., No.3 June 2003 Boyle J ‘The Opposite of Property’ Law and Contemporary Problems Winter 2003 Copyright Law Review Committee 2001 Copyright and Contract (AGPS) Hietanen H & Oksanen V ‘Legal metadata, open content distribution and collecting societies’, 2004 Lessig L Free Culture Penguin, New York, 2004 Oi I and Fitzgerald P ‘Free Culture: Cultivating the Creative Commons’ (2004) Media and Arts Law Review (forthcoming)