1. Commons & collecting societies: Collision or collaboration? Graham Greenleaf Professor of Law, UNSW; Co-Director, AustLII & Cyberspace Law and Policy Centre AustLIICyberspace Law and Policy Centre See for PPTshttp://www2.austlii.edu.au/~graham/publications/2005

2. Collision or collaboration? “One of the biggest mismatches of Creative Commons is with collective copyright licensing and collecting societies” - Hietanen & Oksanen, 2004Hietanen & Oksanen “As the former head of an author’s collecting society, to me Lessig’s Creative Commons project looks like nothing more than applying copyright in a collecting society model for digital rights management.” - Chris Zielinksi, 2002Chris Zielinksi, 2002 What’s going on here? - Conflict or convergence?

3. Overview What are public rights in copyright? Is there an Australian public domain? How does the continuum of rights change? Legislation - Licensing - Technology Commons projects and challenges 4 tasks in building Australia’s copyright commons Collecting societies and commons projects Which aspects are against the interests of collecting societies? Which aspects could result in collaboration?

4. 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’ - we must see the ground, not just the figure This approach treats © as a limited monopoly, granted in the public interest in order to encourage creativity

5. Public rights in copyright? ‘Maximalist’ extremist view: Public rights are a historical accident, all uses should require consent Regards author’s interest as a natural right Regards all property held in common as ‘tragic’ Regards all previous exceptions as stemming only from past inefficiencies in transaction costs Abolitionist extremist view: Copyright is theft / unnecessary / unenforceable Some post-modernists debunk authorship, deny originality Some naïve Internet gurus (eg John Perry Barlow) considered the net would make copyright unsustainable Views rarely held, at least in Australia

6. Public rights in copyright? 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 …

7. Terminological confusion? No accepted terminology yet for the public rights aspects of works which are also to some extent subject to private © interests 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 (US theorists - Boyle, Benkler, Litman, Lessig’s ‘Free Culture’) ‘Public domain’ then becomes a positive slogan for those who wish to defend or extend the public aspects of works

8. Terminological confusion? ‘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 2001Creative Commons Internationalised via ‘iCommons’ associates such as iCommons Australia (based at QUT)iCommons iCommons Australia Little difference in philosophy and approach from other approaches to licence-based public rights Eg AEShareNet in Australia’s TAFE sectorAEShareNet ‘[creative] commons’ and ‘public domain’ often interchangeable - confusion

9. 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 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 and free licensing of rights to the public, but ‘some [proprietary] rights reserved’

10. 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 Essential to recognise how flexibly terms are used I use ‘commons’ to refer to wherever there are more public rights than the statutory minimum 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 …

11. Legislation: 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 DEST’s suggestions for works published on the internet to be presumed ‘free for education’

12. Legislation: altering the continuum New or expanded compulsory licences Expands public rights but may profit © owners CAL’s history: bitter resistance, 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

13. Licensing: altering the continuum 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 Public licences of Crown © works (eg NSW licences to the public of legislation and cases)

14. Commons projects and challenges 4 tasks in building Australia’s © commons These are the basis of a Linkage - Industry application to the Australian Research Council (Nov 2004) 10 IP academics, 3 others, 6 industry partners - based at UNSW CyberLaw Centre Will attempt a comprehensive look at the relationship between public and private rights in copyright, with an Australian focus

15. Task 1: Analysing public rights - theory and taxonomy An Australian commons theory Most commons theories (particularly Lessig’s) are from the context of US © and constitutional law, and institutions We need approaches free of the 1st Amendment, ‘fair use’ and maximalism 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?

16. 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 is 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

17. Task 3: Making works findable  How can potential end-users find works subject to public licences? 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 also used to find infringement of proprietary works

18. Task 4: Incentives to create public rights How can © owners be encouraged to create some public rights? ‘Vanity press’ inducements (eg SSRN)?SSRN Requirements for works created with public funding (eg much academic work) to become 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 CC ‘Founders licence’ - as if ‘term extensions’ had not happenedFounders licence’

19. Collecting societies and commons projects Is there a fundamental contradiction? CAL does not require an exclusive licence from members - no inherent contradiction Members are free to licence their works outside CAL in ways that include public rights Could CAL accept member instructions to licence via CAL licences including public rights? If so, some CAL licences could be much the same as CC licences, AESN licences etc Some collecting societies are antagonistic obtain exclusive licences; or disqualify from royalties if there are other forms of distribution; or have statutory rights to collect which they won’t waive for CC licences

20. Collecting societies and commons projects Which aspects of commons projects could result in collaboration? CAL members will use commons licences CAL should not collect for the free uses of a work Universities etc may be unwilling to pay for same 1 - Analysing public rights Understanding is necessary if CAL’s systems are to cope with these works 2 - Understanding and consistency CAL has a strong interest in consistent terms if it is to ensure consistent ‘non-collection’ International consistency also important for CAL

21. Collecting societies and commons projects 3 - Finding which works are subject to commons licences CAL may need to do this for effective administration Use of DOIs in commons projects will assist this 4 - Incentives to expand public rights CAL could be neutral on the question of whether its members licenced for free or for fee If so, it could assist members to create public rights in licences, so as to administer more efficiently, and as a service to members who otherwise generate revenue CAL’s DCM service is already accepting materials for coursepacks which may be subject to commons licences - essential that profit is not generated from these works

22. Collecting societies and commons projects Which aspects of commons projects are against the interests of collecting societies? Changing the legislative boundaries between private and public rights CAL is often likely to be on the other side 4 - Incentives to create public rights CAL may be neutral on this, where voluntary - authors may sometimes support this, publishers unlikely to

23. Publishing and collecting A key issue has emerged: Does CAL represent all copyright owners or only those who wish to exclusively exploit their works for profit? 40 years ago, CAL was (rightly) founded on the basis of obtaining a fair share of the cake for authors (and publishers) - ‘collecting’ was an appropriate name CAL need not be a prisoner of its own history authors have always wanted to publish and stay in print, as much as they have wanted to ‘collect’ CAL can serve authors and their works not only by ‘collecting’ - as Classic Australian Works has shown

24. Finish with …a copyright joke? (Michael Fraser said he didn’t know one) Q: What is the difference between a collecting society and a free lunch? A: ….

25. 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) Herkko Hietanen & Ville Oksanen ‘ Legal metadata, open content distribution and collecting societies’, 2004 Oi, I and Fitzgerald P ‘Free Culture: Cultivating the Creative Commons’ (2004) Media and Arts Law Review (forthcoming) Lessig, L Free Culture Penguin, New York, 2004