Cyberspace Law and Policy Centre, University of New South Wales
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Sunday, December 10, 2006


Simplification of Licences (Or, Can’t We Make Licences A Bit Shorter?)

Recently I’ve been revising my paper Simplification and Consistency in Australian Public Rights Licences (see it as AustLII here), which I presented at the Unlocking IP conference earlier this year. In my view, I think that many “public rights licences” which includes both open content and open source licences, are just a bit too long.

Obviously, the trend in licence drafting seems to be to err on the side of being ultra-specific so that, should the licence ever come before a court, a judge can be guided by the licences terms. However, if we want people to actually read and understand the licences, then in my view less is more.

The Creative Commons “three version approach” is an excellent method of allowing non-lawyers (or “humans” as the Commons Deed describes them) to understand what they can and cannot do with the licensed content. As we have seen though, critics have said that the “Human Readable Code” and the “Lawyer Readable Code” previously differed slightly, particularly when it comes to licence provisions regarding “derivative works” and these flaws were only evident when reading the “Lawyer Readable Code”.

Some licensing organisations however, for example, Creative Commons, should be congratulated for creating so many resources that users can read to find out more about their rights and obligations. Australian licensing organisation AEShareNet also deserves the same praise – their 22-page glossary is enormously helpful. These educative efforts go a long way in helping ordinary Australian users understand copyright law (and me, by the way – don’t judge me, it was a very long Act even before the recent 200 page amendments!)

This brings me to the Copyright Amendment Act. The first recommendation of the Senate Legal and Constitutional Affairs Committee report into the provisions of the Bill stated that the Government should undertake a “public awareness campaign and develop a ‘plain English guide’” that would help people understand what the amendments mean.

What a positive step this would be - because, let’s face it, copyright isn’t getting any easier to understand. Possibly my next-favourite Copyright Amendment Bill quotation (after Senator Andrew Bartlett’s) was from the Hon. Mr Duncan Kerr, who said, “copyright legislation now is a bugger’s muddle as far as the ordinary citizen is concerned.” (House of Representatives Hansard, 1 November, p. 27) I’m not entirely sure what a “bugger’s muddle” is but you get the picture. How can licence drafters be expected to make licences shorter and easier to understand if our national copyright law continues to expand in length and density?

This makes me think that perhaps it will fall to voluntary licensing to inspire governments to make the change from lengthy copyright law to simple, understandable provisions. Here’s hoping the “Human Readable” version of the Copyright Amendment Act comes out soon!

P.S. - I tried to use Flickr to find a CC-licensed picture of someone looking “confused” that I could add to this post. Instead, I ended up both dazed and confused as I searched through the 5100 photos that came up after I typed “confused” into the Creative Commons/Flickr search engine. Pity the poor people whose perplexed expressions are now free for reuse!


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