New approaches to expanding public rights in copyright Graham Greenleaf Professor of Law, UNSW Co-Director, Baker & McKenzie Cyberspace Law and Policy Centre

Overview: Re-positioning public and private rights in Australian copyright What is the public domain? Issues relating to public rights in © Legislation can alter the spectrum Licensing can alter the spectrum Coping with new licensing models One current issue - Crown © Full / partial abolition Creative licensing

What is the public domain? 2 approaches to rethinking public rights in © No accepted terminology yet for the public rights aspects of works which are also to some extent subject to private © interests (1) Expanded the notion of ‘public domain’ ‘Public domain’ concept should include all aspects of works that © does not protect US theorists (Boyle, Litman) argue this ‘public domain’ takes on a normative element Copyright Law Review Committee argued (2001) that the exceptions to © are ‘fundamental to defining the copyright interest’

What is the public domain? (2) Populating the spectrum between public domain and proprietary rights ‘public domain’ as one end of spectrum; no dichotomy Descriptive, but even the recognition of the spectrum is new Maintains the conventional narrow notion of ‘public domain’ Both approaches have something to offer

Legislation can alter the spectrum Proposed extension of © term to 70 years ‘term extension’ contracts the public domain Abolition of Crown © Expands the public domain Changes to the definition of ‘fair dealing’ Moves many works more toward the centre Alternatively, expands the public domain

Licensing can alter the spectrum Licensing 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 Some public licences of Crown © works

Coping with new public licensing How can potential users understand public licences? How important is consistency compared with maximum flexibility? How can potential users find works subject to public licences? Is some form of registration workable? Can web spiders / search engines find digital works with some consistent code embedded? (now used mainly for proprietary works)

Coping with new public licensing How can © owners be encouraged to create some public rights? ‘vanity press’ inducements (eg SSRN)? Pro-active acquisition of an IP ‘national estate’ from authors willing to donate (not to the ‘nation’ but to the public)? How can collecting societies cope? Must not collect for the free uses of a work A strong interest in consistency How can DRMS respect public rights?

Case study of options - Crown © in legal materials Wearing AustLII hat here Three arguments Stronger reasons here for removing Crown © than for other government materials Otherwise, broad licences to the public are necessary - and can be effective In both cases, public interest requires that govt. provides effective access to electronic copies

Crown © in legal materials (1) Reasons for abolition Clear public interests in maximising availability © provides no incentive for their production Transaction costs in obtaining licences Competition between publishers, not monopoly, is needed for development Gov Pubs have a conflict of interests Preservation of integrity does not require © NZ & US abolition of © here should be followed

Crown © in legal materials (2) Broad licences to the public Necessary if © not abolished NSW licensed judicial decisions and legislation to the public in 1995/6 Any publisher authorised to republish State reserves right to revoke licence Must not purport to be ‘official’ Must be accurate, ‘in proper context’ and of ‘appropriate standard’ A ‘Government public document’ standard licence is needed, to extend to similar classes of docs. Preferable if consistent across jurisdictions

Crown © in legal materials (3) Effective access to electronic copies © is not the main issue - irrelevant without access to reliable data flows AustLII advocates 7 responsibilities of government re access to legal information Corollary: self-publication is not enough EU Directive on re-use of public sector information (2003) advocates similar policies A few Australian governments misuse their control of the flow of information