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Thursday, October 30, 2008


(Section 32 of) The Copyright Act (is cool)

Bond introduced me to the Copyright Act today (I never studied law, you see). It's got a section in it that's pretty neat from my perspective. Section 32, which I will summarise (this is probably very uncool in legal circles, to paraphrase like this, but I can 'cos I'm not a lawyer):
There is copyright in a work if:
  • The author is Australian; or
  • The first publication of the work was in Australia
Yeah, that's it with about 90% of the words taken out. Legal readers, please correct me if that's wrong. (I can almost feel you shouting into the past at me from in front of your computer screens.)

So to explain a little further, there's copyright under Section 32 in all works by Australian authors, and all works by any authors that publish their works in Australia before publishing them elsewhere. There's also a definition of 'Australian' (actually 'qualified person'), but it's not particularly interesting. And there's some stuff about copyright in buildings, and people who died, and works that took a long time to produce.

Anyway, what good is this to me? Well, it makes for a reasonable definition of Australian copyrighted work. Which we can then use to define the Australian public domain or the Australian commons, assuming we have a good definition of public domain or commons.

It's a very functional definition, in the sense that you can decide for a given work whether or not to include it in the class of Australian commons.

Compare this with the definition ('description' would be a better word) I used in 2006:
Commons content that is either created by Australians, hosted in Australia, administered by Australians or Australian organisations, or pertains particularly to Australia.
Yuck! Maybe that's what we mean intuitively, but that's a rather useless definition when it comes to actually applying it. Section 32 will do much better.

Thanks, Bond!

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Open Education Workshop 2008

(Via Pia)

The Australian Service for Knowledge of Open Source Software (ASK-OSS) supported by the New South Wales Department of Education and Training, is hosting a workshop to explore Open Education in teaching, learning and research across schools and universities. We invite you to participate in this strategic event where you will discover Open Education initiatives around the world, as well as help contribute to the direction of Open Education in Australia for 2009 and beyond.

Speakers include:
When: 21st of November, 2008 - 8:30am to 5pm
Where: MGSM, Macquarie University, Sydney
Cost: Free
Registration & Information see:

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Wednesday, October 29, 2008


Copysquare and Konomark

You know how sometimes you're not getting anything done and so even blogging about something you haven't thought about for a couple of months seems like progress? But I should have blogged about this by now anyway, and that's justification enough.

Back at iSummit '08, there was a presentation by Eric E. Johnson, Associate Professor at the University of North Dakota Law Faculty. In fact a full paper is available on the iSummit research track website, here.

You could read the full paper but I'm not expecting you to. I only browsed it myself. But I sat down for a while and talked to Eric, and his ideas were interesting. I think that's the thing that impressed me most about him. He was thinking outside the square (apropos, try to join these 9 dots with 4 straight lines, connected end-to-end; hint: start at a corner).

Hmm... I probably just lost half my readers, and I didn't even get to Copysquare and Konomark.

This is Konomark:

It's a way for you to say you're willing to share your intellectual property. It is not a licence. It is not a legal mechanism; it has no legal effect. It's the IP equivalent of this t-shirt. You don't want to grant an irrevocable licence to all, but if people ask you for permission to re-use or re-purpose your work, there's a good chance you'll say yes, and you certainly won't be offended that they asked. It's one brick in the foundation of a culture of sharing. I think Lessig would approve.

This is Copysquare:

Okay, that's just the icon. Copysquare is actually a licence. I'm not sure if it's fully developed yet, but it's close. It's main focus is for people who want to create small, quality creative works that can be included in larger productions, such as movies.

The example Eric gave is a cityscape scene in a TV show, where most of the show is filmed indoors, but there are these little clips that remind the viewer of the geographic location of the story. The show that springs to mind is House, MD. I'll quote Wikipedia:
Exterior shots of Princeton-Plainsboro Teaching Hospital are actually of Princeton University's Frist Campus Center, which is the University's student center. Filming does not, however, take place there. Instead, it takes place on the FOX lot in Century City.
Here's what Eric E. Johnson said to explain the licence (from his blog post about it, also linked above):
Copysquare uses three basic license provisions to pursue its aims: (1) a requirement of notification, (2) a right to reject, and (3) “favored nations” treatment.
He goes on to give this paraphrasing of the licence:
"You can use my creative work – film footage, picture, sound effect, etc. – in your creative work, but you must notify me that you are doing so (the notification provision), give me a chance to opt out (the right to reject), and you need not pay me or credit me, but if you pay or provide credit to others for the same kind of contribution, you must pay me and credit me on an equal basis (the favored-nations provision).”
So say you were the person who took that aerial shot of the Princeton Campus. You put your stuff on the web and copysquare it. Someone uses it in their YouTube videos, uncredited, not-paid for, but lets you know first and so that's cool. Someone else tries to use it in a McCain campaign add, and you assert your right to reject. And the production crew from House, MD., use it, tell you, credit you (because they credit others) and pay you (because they pay others). And everyone is happy, except probably not McCain because he is way behind in the polls right now.

I'm not the law expert, but if it works like this, I think it's pretty neat. I like the favoured nations idea: if you're producing a work on a shoestring budget, use my contribution freely; but if you're paying others, pay me too. Note that this is not in fact about whether your project is for a commercial product. It's about whether it's a commercial production. The idea, as Eric explained to me, is that you're happy for small time players, say independent film producers, to use your work. But if there are credits in that independent film, you want to be in them. And if Hollywood is going to use your work, you want a little something financially, just like everyone else working on the film is getting.

Damn, I thought this was going to be a short blog post. Well, I guess it was for those of you who got distracted by the nine-dots puzzle and stopped reading. (Didn't try? There's still time.)

A commons of copysquared material?

So around about when Eric was giving his presentation at iSummit, I was thinking about how to define 'the commons' (for my purposes). It was something I wrote about in my paper and talked about in my presentation. And I realised that by my definition, konomark and copysquare material weren't included. In fact it's how I came to talk to Eric, and I put it to him that copysquare wasn't a commons based licence.

No surprise, he accepted my argument (it was, after all, only an argument from definition), but we both agreed that this doesn't make copysquare any less useful. Anything that helps the little guy get noticed, get credited, get paid if his work is useful enough, and promotes sharing, has got to be good.

It seems to me that konomark and copysquare each fill a niche in the sharing space. In fact niches that, before iSummit, I hadn't realised existed.

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Tuesday, October 28, 2008


Suzor on the ACTA Briefing

Last Friday (24 October), the Department of Foreign Affairs and Trade held a public forum in Canberra on the Anti-Counterfeiting Trade Agreement (ACTA) (see Sophia's previous post here). While House of Commons housemates were unable to attend (conference papers, theses, Remix, oh my!), Nic Suzor has an excellent, substantial account of the forum on his blog here. Here's a taste:
Today I attended a briefing session on ACTA hosted by the Australian
Department of Foreign Affairs and Trade (DFAT). I felt it was a good meeting,
and I really got the sense that DFAT were interested in public participation.
There was a good deal of frustration on both sides of the fence – participants
expressed serious concerns about the lack of transparency in the negotiating
process, and DFAT consistently repeated that they were bound by confidentiality
agreements and could not divulge details of the draft text of the agreement.
Participants in the Tokyo round of negotiations agreed that the full text of the
agreement will only be made available after negotiations have been concluded and
the text finalised. Understandably, there were a number of members of the
audience who were hesitant to accept any of DFAT's assurances as to the content
of the agreement without access to the negotiation documents.

Overall, whilst I think that the process is far too secretive, DFAT appear
to have gone a long way to make available what they can, and they seem genuinely
interested in hearing from interested parties in Australia. Unfortunately, input
will be limited (blind) until negotiations are complete and the text finalised,
but DFAT assures us that they are considering the issues thoroughly and there
will be genuine opportunity to debate whether or not to sign at the end of the

The big points I would take away from the meeting are:
  • Negotiations will go 'well into 2009';
  • The Commonwealth Government is not seeking to drive domestic changes through
  • Overall, there do not appear to be any great changes to Australia's
    enforcement regime – it appears to be more focused on affecting other
  • The Government intends to limit the effect of any treaty to trademark
    infringement and commercial scale copyright infringement;
  • However, statutory damages for copyright infringement are on the table;
  • Next meeting, in December, will consider internet distribution;
  • Camcording is likely to be criminalised;
  • There's still time to make relevant submissions to DFAT – indeed, they
    release a substantial amount of information once they receive the draft
    proposals before every negotiation round;
  • DFAT has a copy of the Cutler report.

Interested readers should head over to Nic's site to read the rest (and also have a look at the outline of Nic's PhD on 'Virtual environments and digital constitutionalism' - looks as though it will be an immense contribution to this area).

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Sunday, October 26, 2008


Can I Remix Lessig's 'Remix'?

Book Review: Remix: Making Art and Commerce Thrive in the Hybrid Economy, Lawrence Lessig (2008, The Penguin Press, USA).

While we all know the old adage to not judge a book by its cover, the cover of Remix is probably the best of Lessig's tomes to date, an attractive blending of pink and blue circles to create purple. So when I sat down on Thursday night with my white dust-jacketed hard-cover copy and opened up to the Tiffany-blue inside cover, I was a little surprised by what I read. The first line of the dust-jacket blurb states that "The author of Free Culture shows how we harm our children...". Snippets of The Simpson character Helen Lovejoy's recurring shriek came to mind, "Won't somebody please think of the children!" Perhaps this is an unfair comparison, but I admit I was a little perturbed by Lessig's framing his argument in such a way.

Still, I soldiered on with Remix and, overall, I was impressed by Lessig's latest contribution. Lessig frames his text in terms of the development of 'Read Only' culture, which dominated the 20th century and 'Read/Write' culture, which we are experiencing the beginnings of now, particularly with regard to user-generated content. As with his previous texts, Lessig draws on a number of examples to illustrate why we need to create a 'hybrid' economy that draws upon both the commercial and sharing economies. For the most part, Lessig is quite persuasive in his argument and, as always, writes in a non-legalistic way that many can understand.

Yet there are a few things that to me lessened the impact of the book. My criticisms of Remix are basically two-fold, and these won't bother everyone. The first is - and you can criticise me for stating this - the essentially all-American focus. Lessig talks about how we are damaging 'our children', when clearly this is really 'our children in the western world with access to a computer'. This may seem an unfair criticism; not every book needs to address the disparity between developed and developing countries and Internet access, but Lessig does not even acknowledge this point. This is a particular shame given that Creative Commons licences are now being ported to many different jurisdictions and it would have been a good opportunity to show how the concept of 'remix' works in these jurisdictions. Perhaps Lessig might address this in the future.

The All-American focus also bothered me with regard to Lessig's recommendations for legal reform. Again, Lessig pioneers the, 'let's make copyright an opt-in system and reduce the length of protection' position. Let me say this once and for all, to all those Americans out there who have made the same or similar points: THE BERNE CONVENTION EXISTS. I'm sorry. I didn't mean to do the keyboard equivalent of yelling. But I imagine my future thesis examiners will not be impressed if I make a number of suggestions for reform that completely ignore the reality of Australia's international obligations. The Berne Convention dictates a certain period of protection for works and other subject matter and, in fact, the United States has extended its protection beyond that minimum (and indeed made Australia do the same). Suggestions for reform that ignore these obligations are essentially useless. We need to start thinking about reforms that work within the current system and, admittedly, Lessig does so, for example, by suggesting a simplification of current copyright law. But choosing to ignore the reality of international obligations lessens the impact of those other suggestions, unless Lessig is willing to address this issue at an international level.

My second point is that I think Lessig needs to reconsider who his target audience is. Lessig writes about the impact of blogs; he writes about Wikipedia; he writes about YouTube, Amazon, Google, Flickr. The trouble is the people who will read Remix and ordered his book as quickly as I did, will be individuals who blog; have edited Wikipedia; shopped on; and use Google, YouTube, and Flickr. They may have some legal knowledge (at the very least a brush with copyright law). They will probably also be American, actually.

Thus the majority of Lessig's readers, particularly those who buy the first run of Remix, probably know as much about his modern examples as he does. In fact, Lessig himself has encouraged this, by creating wikis for his books that his readers can directly contribute to. So there is no reason any more to re-write the details of Wikipedia's birth. Benkler has done it. Zittrain has done it. Lessig has done it. Even I have done it. Let there be no more, please.

This may seem a harsh criticism, and certainly there will be people who read Remix and this is their first brush with such a brave new world. But if you are reading this review, then you probably know a reasonable amount about this area anyway, and can probably see where I am coming from.

Despite these criticisms, as I said before overall I did enjoy Remix...and, in the spirit of the hybrid economy that Lessig writes about, I look forward to contributing to the Remix wiki, and not receiving any payment for that.

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Monday, October 20, 2008


Australian Institute of Criminology report on 'Intellectual property crime and enforcement in Australia'

Last week the Australian Institute of Criminology released its report on Intellectual property crime and enforcement in Australia, with some very interesting findings. I haven't had a chance to go through the whole report yet but I just wanted to make a general comment about this statement, which I find completely unsurprising (at p. 38):

An Envisional study found Australia was the second-largest downloader of online
pirated TV shows in the world (15.6%), behind the UK (18.5%) but ahead of the US
(7.3%). Australians were the leading downloaders of pirated TV programs on a per
capita basis. The report found that increased bandwidth take-up, technological
advances and a high demand for US-based TV shows are some of the reasons that
piracy has boomed. Seventy percent of the piracy occurs through BitTorrent (BT)
(Envisional 2004, BBC News 2005, Reuters 2005). The survey found that the top TV show downloads were 24, Stargate Atlantis, The Simpsons, Enterprise, Stargate
SG-1, OC, Smallville, Desperate Housewives, Battlestar Galactica and Lost (Idato

Australia is, and has always been, since colonial times, an importer or 'user' nation of copyright-protected materials, so it came as no surprise to me that we were the second-largest illegal downloader of television shows. The fact that Australia is an 'importer nation' was picked up in the Spicer Committee's report and then later with regard to the intellectual property package of the AUSFTA. Back in the ye olde colonial days, the majority of our books were imported from the United Kingdom, with many UK publishers and then eventually some colonial publishers, producing specific 'colonial editions' for sale in Australia. As Martyn Lyons has noted in a chapter of the fantastic A History of the Book in Australia 1891 - 1945, Australia earned itself the reputation as being 'the jewel of Britain's book trade empire.' (see Martyn Lyons, 'Britain's Largest Export Market', in Lyons & Arnold (eds) A History of the Book in Australia 1891 - 1945, 2001, at p. 19).

Until about five years ago, a similar statement could be made regrding Australia's importation of international television shows, predominantly from the United States and, to a lesser extent, the United Kingdom (I think The Bill and Jane Austen miniseries adaptations would comprise a lot of that market!) And, just as in the colonies Australian readers had to pay a considerable amount more than their UK counterparts to purchase the latest fiction, Australians had to wait a long time to see new episodes of their favourite TV shows.

The West Wing is an excellent example - originally it was aired on the Nine Network, who changed the time and date of broadcast so often that many viewers began to resort to to get the latest series on DVD. Eventually (thankfully) it was picked up by the ABC and the sixth and seventh seasons were shown weekly until the end of the series.

With examples like this, it is really no surprise that Australians have turned to the Internet to catch their favourite shows just after they have been aired in the United States. This is not to suggest that I support this type of behaviour but it poses a challenge to the free-to-air networks in Australia to change their business models, and I know a number have. In an article published yesterday in the Sun-Herald newspaper (accessible of the Sydney Morning Herald website here) it is noted that shows such as House and the US version of Kath & Kim are appearing about one-three days after they appear in the States. Yet some very popular shows, for example, Heroes, are still taking over a fortnight to get to our screens, though that is still being described as 'fast-tracked'. Not fast enough, clearly.

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Sunday, October 19, 2008


The IceTV Hearing

The High Court has now heard the appeal in IceTV v Nine Network (previously blogged about here, here and here). The House of Commons has received several kind tip-offs about the hearing, but as this housemate just finished a thesis chapter and the last thing that I wrote on was originality under the 1968 Act, a few days were needed to re-group.

The proceedings began on Thursday morning and the Australian Digital Alliance and Telstra were both granted amicus status, the ADA for IceTV and Telstra for Nine Network. David Catterns, the barrister who successfully argued for CAL in the recent CAL v NSW decision appeared for Telstra. The hearing took the better part of Thursday and Friday and the transcript of the Thursday proceedings can be found on AustLII here.

As I said, this is the first of a few posts on the hearing, so I will have more of a discussion up within the next few days.

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Friday, October 10, 2008


Untitled #1

During an Alice Springs gallery visit last Friday, Arts Minister Peter Garrett energetically hyped the great benefits that a resale royalty scheme will apparently confer on visual artists in Australia. The proposed legislation to establish a right to resale royalties for visual artists is expected to be in place by mid-2009.

The announcement that the royalty scheme will soon be a reality is undoubtedly good news for many visual artists. Royalties will be payable upon all ‘original works of graphic or plastic art’ that sell for $1000 or more, upon their second sale. The right will apply to all eligible works that are acquired after the legislation commences – whether the first acquisition or transfer of ownership was by gift, inheritance, sale, or some other means. The royalty payable will be calculated at an uncapped flat rate of 5% of the resale price.

The media release reporting Garrett’s announcement pointed to a number of advantages in the introduction of the scheme: Indigenous artists and their estates will benefit from both the significant increases in price that many works are now fetching on the secondary market, as well as the requirements for greater accountability and record-keeping that will be contained in the legislation. Visual artists in general will benefit from the fact that a right to royalties places them in the same field as artists working in the mediums of music, film, literature and so forth, where royalties are an established part of those artists’ income from their work.

Unsurprisingly, a few significant factors were conveniently glossed over during the fanfare. Firstly, the definition of what will constitute a ‘work of art’ appears to contain some substantial holes. The definition proposed will be based upon that utilised in the EU, and covers works in such media including “a painting, a collage, a drawing, a limited edition print, a sculpture, a ceramic, an item of glassware or a photograph”. Video/digital/new media are conspicuously absent from this definition, and it will be interesting to see how (or if) the right also applies to works that are sold as ‘installation’-type suites, including video, sound and so on.

Further issues are raised when the outcomes of the scheme, and precisely who will benefit, are considered. While Indigenous artists have been a particular (and deserving) focus in this aspect of the debate over introduction of the scheme, the Discussion Paper issued by DCITA in 2004 made the point that often, female artists (from all backgrounds) are underrepresented in the secondary art market (2004, p34); male artists, and especially white male artists, are by far the dominant group in terms of whose work fetches significant prices upon resale. While the $1000 minimum resale price opens the scheme to many visual artists, the recurring issue of whose art is bought and sold more often, involving arguments about gender/culture/race and the art market, are unavoidable.

The resale royalty scheme is a valuable and long-overdue right for visual artists. Re-examining how a ‘work of art’ is to be defined will be an important aspect in the drafting of the legislation, and hopefully one that is paid due attention considering the increasing interest in new/digital media in contemporary art practice. Most importantly, the scheme is certainly not a final answer to supporting the entire visual arts community, in all its diversity. As the Arts Law Centre stated in its response to the Discussion Paper:
…this is but one mechanism for increasing the income steam of artists in Australia. It does not negate the need for other support mechanisms being available to visual artists and craftspeople, such as increased funding to the visual arts and many of the other proposals outlined in the Myer Report (2004, p6).

Indeed, this blogger is waiting with interest to see which killer arts policy is next heralded by Peter Garret.

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Thursday, October 09, 2008


'What History Teaches Us About Copyright Injunctions'

Sent through to the House of Commons by Professor Kathy Bowrey:

For readers interested in reading more on copyright's early history (1500-1800) and unable to spend a month or two at Kew public records, there is a great article by H. Tomas Gomez Arostegui, 'What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-at-Law Requirement', 81 S. Cal. L. Rev. 1197 (2008).

Tomas has also started compiling a website where he includes an Appendix of Copyright Infringement Suits & Actions From c. 1560 to 1800, and pdfs of some of the cases. More cases to follow as he expands the resource. You can find this all here.

It is a really impressive project.

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Friday, October 03, 2008


Resale Royalty Rights - Coming Soon

According to this media release (via the Minister for the Environment, Heritage and the Arts, Peter Garrett) we can expect the implementation of a resale royalty rights scheme for Australian visual artists by 1 July next year.

More info is available here.

Sophia has previously blogged about the proposed scheme here.

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Thursday, October 02, 2008


Bowrey on Originality

As many readers will know, the issue of originality within Australian copyright law is currently a hotly contested issue, with the appeal in the IceTV v Nine Network decision to be heard before the High Court in two weeks time, on the 16th and 17th October.

Professor Kathy Bowrey, author of Law and Internet Cultures and House of Commons friend (and one of my supervisors), has recently penned an article on these issues, titled 'On clarifying the role of originality and fair use in 19th century UK jurisprudence: appreciating "the humble grey which emerges as the result of long controversy"'. Kathy's article has a slightly different focus: tackling originality in 19th century case law and how this concept developed. The abstract states:
Understanding nineteenth century precedent is one of the more difficult tasks in
copyright today. This paper considers why the nineteenth century cases and
treatises failed to clearly identify what the author owns of “right” and the
implications for the criterion of originality and for determining infringement
You can find it in the UNSW Law Research Series here and for any readers interested in the forthcoming IceTV case this is a must-read. Two weeks to go...

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State Library of New South Wales on Flickr Commons

Being a very dedicated PhD student, I spend a lot of time in libraries, and the State Library of New South Wales is one of my favourite to visit. The Mitchell Collection of the State Library, housed next to the Domain, is in my view one of the best libraries in Australia and houses an immense collection of colonial (and yes, more recent) documents.

On a recent trip when I was undertaking research into colonial publishing practices, I was lucky enough to access a copy of Tess of the d'Urbervilles by Thomas Hardy, which was published as part of Petherick's Collection of Favourite and Approved Authors. That series, published by E.A. Petherick & Co. was one of the few series of books published by local publishers. The copy of Tess that I handled was a beautiful book, published in 1892. The State Library staff kindly informed me that there were more recent editions of Hardy that I could have a look at...and then looked slightly confused when I wanted a copy of the inside covers of the book (which contained a listing of all the books in the Petherick can read exactly why I wanted to see this when I finish my thesis in about six months time).

This walk down memory lane is an avenue for announcing that the State Library of New South Wales has just released rare Australian photographs from its archive onto Flickr. If that copy of Tess was anything to go by then there are going to be more than a few cultural gems released as part of this collection. You can find the complete photostream here but I thought I would include one photo in this post, which would allow me to continue my time travel through Australian history:

Sir Isaac Isaacs and Lady Isaacs, photographed by Sam Hood, from the collections of the Mitchell Library, State Library of New South Wales, featured on the SLNSW Flickr photostream here, persistent URL here.

For those of you who are not familiar with Sir Isaac, he was Australia's first native-born Governer-General and the 3rd Chief Justice of our High Court. Sir Isaac dissented in the first case on the power of the Parliament to make laws with respect to copyrights, patents of invention and designs, and trade marks (section 51(xviii)) in Attorney General (NSW) ex rel Tooth & Co Ltd v Brewery Employees Union of NSW.
This concludes today's lengthy lesson on Australian copyright and cultural history!

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