Tuesday, April 24, 2007
Legal Framework for e-Research Conference 2007
[This is a guest post, written by Scott Kiel-Chisholm, Project Manager on the OAK Law project and Legal Framework for e-Research project -- Abi]
Wednesday 11 July – Thursday 12 July @ Surfers Paradise Marriott Resort and Spa, Gold Coast,Queensland
Wednesday 11 July – Thursday 12 July @ Surfers Paradise Marriott Resort and Spa, Gold Coast,
The conference promises to be an exciting and engaging forum for researchers, technologists, and educators with interests and expertise in e-Research who recognise the need to remain current in this rapidly advancing field.
With vast change to the global research sector due to advances in information and communications technology (ICT) e-Research now supports all disciplines from the sciences to humanities.
This conference will examine legal issues facing e-Research both in
International Keynote Speakers will include:
- John Wilbanks, Executive Director of Science Commons
- Dr Michael Spence, Head of the Social Sciences Division of the
- Paul Uhlir, Director of International Scientific and Technical (S&T) Information Programs at The National Academies in
- Claire Driscoll, Director of Technology Transfer for the National Human Genome Research Institute (NHGRI, NIH),
- Special guest speaker Professor Fiona Stanley AC, Director Australian Telethon Institute for Child Health Research, Executive Director Australian Research Alliance for Children and Youth and Australian of the Year (2003).
For more information and online registration go to www.e-Research.law.qut.edu.au.
The Legal Framework for e-Research project is funded by the Australian Commonwealth Department of Education, Science and Training (DEST), under the Research Information Infrastructure Framework of Australian Higher Education, as part of the Commonwealth Government’s Backing Australia’s Ability – An Innovation Action Plan for the Future (BAA) report.
Labels: conferences, guest post
Monday, April 16, 2007
Examining Australia’s Commons
[This is a guest post, written by Professor Graham Greenleaf, Chief Investigator on the Unlocking IP project, co-director of the Cyberspace Law and Policy Centre and co-director of AustLII -- Catherine]
SCRIPT-ed, the peer reviewed online journal at the University of Edinburgh Faculty of Law, has published a Special Issue ‘Creating Commons’(Volume 4, Issue 1, March 2007). It’s based on papers presented at the Conference 'Creating Commons: The Tasks Ahead in Unlocking IP', held at the University of New South Wales, Sydney, on 10-11 July 2006. The ‘Unlocking IP’ project, funded by the Australian Research Council, investigates the rapidly changing relationship between public and private rights in Australian copyright law and practice. It explores options for maximising the ‘unlocking’ of the potential uses of copyright works through sharing and trade in works involving public rights (open content, open source and open standards licensing) and through enhancement to the public domain. The papers in this Special Issue address all four main aspects of the project (i) theories and taxonomy of public rights (Greenleaf); (ii) voluntary licences and their consistency, simplicity, and effectiveness (Bond, Coates); (iii) technical issues in finding works with public rights more effectively (Bildstein); and (iv) incentives to expand public use rights (Clarke) and requirements to protect them (de Zwart). Nicol’s paper deals with aspects of all four topics in relation to patent regimes and biotechnology, whereas the focus of the other papers is on copyright. One common theme in most papers is the national dimension of commons, the question of to what extent commons are created by and situated in the copyright regimes, institutions and practices (including licences) of particular countries. Is the ‘Australian commons’ significantly different in its features than the ‘Scottish commons’, or are both now largely homogenised in an US-flavoured international commons stew?
No surprises that voluntary ‘commons licences’ are the main focus of the Special Issue, so let’s start there. Ben Bildstein in ‘Finding and Quantifying Australia’s Online Commons’ asks some new questions: ‘how are public rights in fact being expressed in the online commons?’, and its converse ‘how can you find works that are part of Australia’s online commons, using current tools?’. He gives us a snapshot of the ‘Australian online commons’ in 2006, stratified by licence types, a baseline study for a longitudinal analysis of the ‘down under’ bit of the commons over the next few years. Watch <http://www.unlockingip.org/> for developments.
Jessica Coates (‘Creative Commons – The Next Generation: Creative Commons licence use five years on’) provides an overview and analysis of the practical application of the Creative Commons licences five years after their launch. She takes a more qualitative approach to analysis of changes in licence use over time, who is using which licences, and their likely motivations for doing so. These licence use trends, she argues, help to rebut arguments that Creative Commons is a movement of academics and hobbyists, and has no value for traditional organisations or working artists.
More questions from Catherine Bond, who asks in ‘Simplification and Consistency in Australian Public Rights Licences’ how voluntary licences can be further simplified to increase both usage and ease of use? She suggests that this could occur through drafting a longer version for potential licensors and a short version for licensees, with simpler language the goal of both. She also questions whether consistency between licences is important, concluding that while it may be desirable and feasible on a national level, but ideological differences may prevent its achievement at the international level.
In the final paper on commons licences, Roger Clarke rejects the application of conventional ‘scarce resource’ economics to content (‘Business Models to Support Content Commons’), and argues that more appropriate forms of economic analysis show the critical role that accessibility to information plays in the process of innovation. He identifies a range of suitable business models for open content to demonstrate that the content commons is sustainable and appropriate for profit-oriented enterprises.
Every country’s constitution is different when it comes to the question of protecting commons against the copyright maximalists. Melissa de Zwart (‘The Future Of Fair Dealing In Australia: Protecting Freedom Of Communication’) concludes that Australia’s judicially articulated implied constitutional guarantee of freedom of political communication is too narrow to act as a control upon copyight law. However the doctrine of fair dealing encompasses elements of freedom of communication and provides some scope for the recognition of such rights under Australian law.
In ‘Creating commons by friendly appropriation’ I argue that the operation of Internet-wide search engines such as Google illustrate an unusual method of creating an intellectual commons, which I call ‘friendly appropriation’. I suggest eight conditions conducive to the successful creation of commons by friendly appropriation, and give some examples of other situations either side of the line. These commons may be rare but are hardly insignificant: a fully-developed theory of intellectual commons needs to recognise them.
Diane Nicol’s ‘Cooperative Intellectual Property in Biotechnology’ rounds off the Special Issue by reminding us that commons are not only about copyright. She explores the range of legal options for dealing with some of perceived problems with the exclusive rights model of patent management in biotechnology. She sets out alternative co-operative approaches including open access models to show their many parallels to issues concerning copyright and commons.
You can watch the Unlocking IP project unfold on its web pages and more entertainingly on the project researchers’ blog ‘The House of Commons’. You’re standing in it.
SCRIPT-ed, the peer reviewed online journal at the University of Edinburgh Faculty of Law, has published a Special Issue ‘Creating Commons’(Volume 4, Issue 1, March 2007). It’s based on papers presented at the Conference 'Creating Commons: The Tasks Ahead in Unlocking IP', held at the University of New South Wales, Sydney, on 10-11 July 2006. The ‘Unlocking IP’ project, funded by the Australian Research Council, investigates the rapidly changing relationship between public and private rights in Australian copyright law and practice. It explores options for maximising the ‘unlocking’ of the potential uses of copyright works through sharing and trade in works involving public rights (open content, open source and open standards licensing) and through enhancement to the public domain. The papers in this Special Issue address all four main aspects of the project (i) theories and taxonomy of public rights (Greenleaf); (ii) voluntary licences and their consistency, simplicity, and effectiveness (Bond, Coates); (iii) technical issues in finding works with public rights more effectively (Bildstein); and (iv) incentives to expand public use rights (Clarke) and requirements to protect them (de Zwart). Nicol’s paper deals with aspects of all four topics in relation to patent regimes and biotechnology, whereas the focus of the other papers is on copyright. One common theme in most papers is the national dimension of commons, the question of to what extent commons are created by and situated in the copyright regimes, institutions and practices (including licences) of particular countries. Is the ‘Australian commons’ significantly different in its features than the ‘Scottish commons’, or are both now largely homogenised in an US-flavoured international commons stew?
No surprises that voluntary ‘commons licences’ are the main focus of the Special Issue, so let’s start there. Ben Bildstein in ‘Finding and Quantifying Australia’s Online Commons’ asks some new questions: ‘how are public rights in fact being expressed in the online commons?’, and its converse ‘how can you find works that are part of Australia’s online commons, using current tools?’. He gives us a snapshot of the ‘Australian online commons’ in 2006, stratified by licence types, a baseline study for a longitudinal analysis of the ‘down under’ bit of the commons over the next few years. Watch <http://www.unlockingip.org/> for developments.
Jessica Coates (‘Creative Commons – The Next Generation: Creative Commons licence use five years on’) provides an overview and analysis of the practical application of the Creative Commons licences five years after their launch. She takes a more qualitative approach to analysis of changes in licence use over time, who is using which licences, and their likely motivations for doing so. These licence use trends, she argues, help to rebut arguments that Creative Commons is a movement of academics and hobbyists, and has no value for traditional organisations or working artists.
More questions from Catherine Bond, who asks in ‘Simplification and Consistency in Australian Public Rights Licences’ how voluntary licences can be further simplified to increase both usage and ease of use? She suggests that this could occur through drafting a longer version for potential licensors and a short version for licensees, with simpler language the goal of both. She also questions whether consistency between licences is important, concluding that while it may be desirable and feasible on a national level, but ideological differences may prevent its achievement at the international level.
In the final paper on commons licences, Roger Clarke rejects the application of conventional ‘scarce resource’ economics to content (‘Business Models to Support Content Commons’), and argues that more appropriate forms of economic analysis show the critical role that accessibility to information plays in the process of innovation. He identifies a range of suitable business models for open content to demonstrate that the content commons is sustainable and appropriate for profit-oriented enterprises.
Every country’s constitution is different when it comes to the question of protecting commons against the copyright maximalists. Melissa de Zwart (‘The Future Of Fair Dealing In Australia: Protecting Freedom Of Communication’) concludes that Australia’s judicially articulated implied constitutional guarantee of freedom of political communication is too narrow to act as a control upon copyight law. However the doctrine of fair dealing encompasses elements of freedom of communication and provides some scope for the recognition of such rights under Australian law.
In ‘Creating commons by friendly appropriation’ I argue that the operation of Internet-wide search engines such as Google illustrate an unusual method of creating an intellectual commons, which I call ‘friendly appropriation’. I suggest eight conditions conducive to the successful creation of commons by friendly appropriation, and give some examples of other situations either side of the line. These commons may be rare but are hardly insignificant: a fully-developed theory of intellectual commons needs to recognise them.
Diane Nicol’s ‘Cooperative Intellectual Property in Biotechnology’ rounds off the Special Issue by reminding us that commons are not only about copyright. She explores the range of legal options for dealing with some of perceived problems with the exclusive rights model of patent management in biotechnology. She sets out alternative co-operative approaches including open access models to show their many parallels to issues concerning copyright and commons.
You can watch the Unlocking IP project unfold on its web pages and more entertainingly on the project researchers’ blog ‘The House of Commons’. You’re standing in it.
Labels: guest post
Wednesday, March 28, 2007
Open Content Licensing: Cultivating the Creative Commons
[This is a guest post, written by Jessica Coates, Project Manager, Creative Commons Clinic, ARC Centre of Excellence for Creative Innovation at Queensland University of Technology --Catherine]
Queensland University of Technology and Sydney University Press have announced the publication of a new collection of papers on open access, Open Content Licensing: Cultivating the Creative Commons.
Edited by Professor Brian Fitzgerald, Open Content Licensing: Cultivating the Creative Commons brings together papers from some of the most prominent thinkers of our time on the internet, law and the importance of open content licensing in the digital age. Drawing on material presented at the Queensland University of Technology conference of the same name in January 2005, the text provides a snapshot of the thoughts of over 30 Australian and international experts – including Professor Lawrence Lessig, Futurist Richard Neville and the Hon Justice Ronald Sackville – on topics surrounding the international Creative Commons, from the landmark Eldred v Ashcroft copyright term decision to the legalities of digital sampling in a remix world. It also provides case studies of a number of Australian-based open access projects, including AESharenet and the Youth Internet Radio Network, and a detailed section on policy and law relating to computer games.
In line with the book’s theme, both the hardcopy and the electronic version have been published under a Creative Commons Attribution-Noncommercial-No Derivatives licence.
Hardcopies can be ordered from the Sydney University Press here, while a PDF of the entire work can be downloaded for free from the QUT e-Prints Archive here. Individual chapters are also available for free electronic download here.
For more information on the book and its contents, visit the Creative Commons Australia page on this new work here.
Queensland University of Technology and Sydney University Press have announced the publication of a new collection of papers on open access, Open Content Licensing: Cultivating the Creative Commons.
Edited by Professor Brian Fitzgerald, Open Content Licensing: Cultivating the Creative Commons brings together papers from some of the most prominent thinkers of our time on the internet, law and the importance of open content licensing in the digital age. Drawing on material presented at the Queensland University of Technology conference of the same name in January 2005, the text provides a snapshot of the thoughts of over 30 Australian and international experts – including Professor Lawrence Lessig, Futurist Richard Neville and the Hon Justice Ronald Sackville – on topics surrounding the international Creative Commons, from the landmark Eldred v Ashcroft copyright term decision to the legalities of digital sampling in a remix world. It also provides case studies of a number of Australian-based open access projects, including AESharenet and the Youth Internet Radio Network, and a detailed section on policy and law relating to computer games.
In line with the book’s theme, both the hardcopy and the electronic version have been published under a Creative Commons Attribution-Noncommercial-No Derivatives licence.
Hardcopies can be ordered from the Sydney University Press here, while a PDF of the entire work can be downloaded for free from the QUT e-Prints Archive here. Individual chapters are also available for free electronic download here.
For more information on the book and its contents, visit the Creative Commons Australia page on this new work here.
Labels: guest post
Monday, February 12, 2007
Vista's Fine Print
[This is a guest post, written by David Vaile, Executive director, Cyberspace Law and Policy Centre -- Abi]
Michael Geist has put into words what many were thinking, in 'Vista's Fine Print Raises Red Flag'.
This explores legal, privacy and technical issues with Windows Vista validation, the new re-balancing of user rights in the End User Licence Agreement (you have less right to control your computer than you thought), and the implementation of functionality reduction (down sampling HD video resolution unless using the HDMI or similar DRM-aware video interface) at the behest of the MPAA.
The comments are interesting too, many succinctly setting out issues relevant to malware research - shows that these issues are accessible to a general audience, and that it is possible to encapsulate them simply:
Michael Geist has put into words what many were thinking, in 'Vista's Fine Print Raises Red Flag'.
This explores legal, privacy and technical issues with Windows Vista validation, the new re-balancing of user rights in the End User Licence Agreement (you have less right to control your computer than you thought), and the implementation of functionality reduction (down sampling HD video resolution unless using the HDMI or similar DRM-aware video interface) at the behest of the MPAA.
The comments are interesting too, many succinctly setting out issues relevant to malware research - shows that these issues are accessible to a general audience, and that it is possible to encapsulate them simply:
"I have just read about Sony BMG and the FTC ruling that states that the action of installing DRM onto consumers machines without their knowledge is indeed illegal. It appears that Microsoft is doing exactly the same thing, but using the EULA to make it legal."
Labels: guest post
Thursday, November 16, 2006
Memo to the Next Google: Don't Set up Shop in Australia
[This is a guest post, written by Sarah Waladan, Australian Digital Alliance -- Abi]
If the Copyright Amendment Bill 2006 is rushed through Parliament, then Australians will be the not-so-proud owners of a complex and inflexible copyright regime that's out-of-date the day it becomes law. Despite what seemed like good intentions, the government has delivered a 200 page mess of changes, with no "fair use" flexibility that U.S. consumers and innovators depend on.
"What's most disturbing is that this Bill is so demonstrably anti-innovation, and for no good reason. U.S. fair use has given businesses like Google, iTunes and YouTube enough room to explore new business models without being suffocated at birth by outdated copyright laws. Without fair use, the next great Internet company is unlikely to come out of Australia," said ADA Chairman, Jamie Wodetzki.
"Even worse, this Bill risks making ordinary Australians criminals, in some cases where they don't even know they're breaking copyright law."
The ADA has called upon the Federal Government to embrace a flexible defence of fair use to ensure that Australia’s copyright laws are credible, relevant, and timely for consumers and technology developers alike.
The Senate Committee on Legal and Constitutional Affairs published its report on the Bill, which was introduced into Parliament on 18 October and is due to become law in December.
Despite the short time-frame the Committee was required to report within, the Committee recognised a number of serious flaws in the proposed legislation and made a number of recommendations in line with the ADA's concerns.
Amongst the Committee's recommendations, it recommended that ordinary uses by consumers of digital music players be rendered legitimate, that copying for preservation purposes in educational and cultural institutions be legitimised, that the criminal offences provisions be re-drafted to ensure that activities of ordinary Australians and legitimate businesses are not caught, and that contracting out of the exceptions to the TPM scheme be prohibited.
Labor and Democrats Senators recommended deferral of the Bill. In recognising the serious flaws in the consultative process, Labor Senators noted:
This was also released as a statement on behalf of the Australian Digital Alliance (ADA) on 14 November 2006
The ADA is a coalition of public and private sector interests formed to promote balanced copyright law. ADA members include universities, software companies, libraries, schools, museums, galleries and individuals.
If the Copyright Amendment Bill 2006 is rushed through Parliament, then Australians will be the not-so-proud owners of a complex and inflexible copyright regime that's out-of-date the day it becomes law. Despite what seemed like good intentions, the government has delivered a 200 page mess of changes, with no "fair use" flexibility that U.S. consumers and innovators depend on.
"What's most disturbing is that this Bill is so demonstrably anti-innovation, and for no good reason. U.S. fair use has given businesses like Google, iTunes and YouTube enough room to explore new business models without being suffocated at birth by outdated copyright laws. Without fair use, the next great Internet company is unlikely to come out of Australia," said ADA Chairman, Jamie Wodetzki.
"Even worse, this Bill risks making ordinary Australians criminals, in some cases where they don't even know they're breaking copyright law."
The ADA has called upon the Federal Government to embrace a flexible defence of fair use to ensure that Australia’s copyright laws are credible, relevant, and timely for consumers and technology developers alike.
The Senate Committee on Legal and Constitutional Affairs published its report on the Bill, which was introduced into Parliament on 18 October and is due to become law in December.
Despite the short time-frame the Committee was required to report within, the Committee recognised a number of serious flaws in the proposed legislation and made a number of recommendations in line with the ADA's concerns.
Amongst the Committee's recommendations, it recommended that ordinary uses by consumers of digital music players be rendered legitimate, that copying for preservation purposes in educational and cultural institutions be legitimised, that the criminal offences provisions be re-drafted to ensure that activities of ordinary Australians and legitimate businesses are not caught, and that contracting out of the exceptions to the TPM scheme be prohibited.
Labor and Democrats Senators recommended deferral of the Bill. In recognising the serious flaws in the consultative process, Labor Senators noted:
"The extremely complex nature of the issues coupled with the extremely short time-frame set by the Government for the inquiry, seriously hampered the Committee in its efforts to comprehensively consider and report on all the evidence before it".Whilst there is no doubt that an overhaul of copyright legislation is much required, unless the Government heeds the recommendations of this report and allows further consultation in relation to the very complex provisions of this Bill, it will almost certainly fail in its stated aim of bringing our laws in line with rapidly changing technological realities.
This was also released as a statement on behalf of the Australian Digital Alliance (ADA) on 14 November 2006
The ADA is a coalition of public and private sector interests formed to promote balanced copyright law. ADA members include universities, software companies, libraries, schools, museums, galleries and individuals.
Labels: guest post
Tuesday, November 14, 2006
Copyright Proposals Fail Test of Brevity, Simplicity and Fairness
[This is a guest post, written by Dr Matthew Rimmer -- Abi]
OVER THE past decade, there have been a number of inquiries into the defence of fair dealing under Australian copyright law.
The current Australian Copyright Act 1968 has a defence of fair dealing, which provides protection against claims of copyright infringement. The defence is limited to particular purposes, such as research and study, criticism and review, reporting the news and use for judicial proceedings. The defence of fair dealing has been questioned for lacking clarity and certainty famously, judges of the Federal Court of Australia could not agree on whether The Panel's use of Channel Nine segments constituted a fair dealing in particular cases. The defence has also failed to keep up with technological and cultural developments.
At long last, the Attorney-General, Philip Ruddock, has introduced the hefty 219-page Copyright Amendment Bill 2006 into Parliament, declaring, ''The Government is committed to dealing with these challenges to copyright head-on, while seeking to also acknowledge the opportunities technology presents. We want laws in place which mean copyright pirates are penalised for flouting the law whilst ordinary consumers are not infringing the law through everyday use of copyright products they have legitimately purchased.'' The legislation has three main features. It introduces a range of miscellaneous exceptions to copyright infringement, provides for the stronger protection of digital copy protection and access codes demanded by the Australia-United States Free Trade Agreement, and will provide a wider array of civil and criminal remedies for copyright owners.
Unfortunately, the Bill will not meet its laudable objectives. The legislation is not ''net neutral'' thus it will apply to particular digital technologies in highly specific ways. It is also drafted in a highly convoluted way which will make it difficult for judges and lawyers to understand let alone everyday consumers, technology developers, and capitalists. It will certainly provide copyright owners with a wide range of civil and criminal remedies in respect of infringement of economic rights and circumvention of ''technological protection measures'', but it does not fix the manifold problems with the defence of fair dealing.
Instead, the Federal Government has created a range of nugatory miscellaneous exceptions, which are narrowly tailored to particular subject matter and technology, and specific purposes and activities. There is limited scope for recording broadcasts for replaying at a more convenient time (time- shifting). There is also a range of technology- specific provisions which allow for the reproduction of copyright material in a different format for private use. In particular, the legislation allows for format-shifting of sound recordings (in other words, space-shifting). However, some commentators have suggested that the tightly worded provisions would not currently cover the everyday use of an iPod or other MP3 player. Moreover, the podcasting and webcasting of radio broadcasts and similar programs has been excluded from the scope of such an exception.
The Government has also proposed a strange, catch-all provision which deals with various miscellaneous provisions. This clause deals with the use of copyright material for certain residual purposes such as non- commercial use by libraries, archives, and educational institutions, and for satire and parody. Such activities are subject to the so- called three-step test under World Trade Organisation regulations. This clause looks unworkable. Consider a cartoonist using a copyright work for instance, wittily depicting Labor Senator Stephen Conroy as a Dalek. The parodist would have to demonstrate that such a use was a special case, that the use did not conflict with the normal exploitation of the copyright work, and that the use did not unreasonably prejudice the interests of a copyright owner. The cartoonist would also have to engage in an interpretation of three-step test under international trade law (which will be difficult, given that there has been only one inconclusive WTO panel judgment on the subject). Such preconditions seem somewhat excessive hurdles for a satirist to have to jump.
Such nugatory, miscellaneous copyright exceptions are a poor substitute to the open- ended, flexible defence of fair use in the United States. The Supreme Court of the US has described the defence of fair use as ''the guarantee of breathing space for new expression within the confines of copyright law'' and called the defence ''an engine of free expression''. Not only does the fair use defence cover particular purposes such as criticism, comment, news reporting, teaching, scholarship and research, the US courts have held that it embraces such activities as time-shifting and space-shifting, parody and transformative uses, reverse engineering, and the use of thumbnail images in search engines. The doctrine provides a much wider safe harbour than that offered by the Government's Bill. The Bill needs reform in terms of form and content to meet academic Paul Goldstein's triple bottom line of ''brevity, simplicity and fairness'' and to ensure consumers, libraries, educational institutions, and technology developers enjoy the same freedoms and liberties enjoyed by their US counterparts.
Dr Rimmer is a senior lecturer at the ANU College of Law.
This guest post was first published as a guest opinion in the Canberra Times, 13 November 2006
See the Senate Report on the Copyright Amendment Bill 2006 (just released)
Media commentary on the Copyright Amendment Bill
OVER THE past decade, there have been a number of inquiries into the defence of fair dealing under Australian copyright law.
The current Australian Copyright Act 1968 has a defence of fair dealing, which provides protection against claims of copyright infringement. The defence is limited to particular purposes, such as research and study, criticism and review, reporting the news and use for judicial proceedings. The defence of fair dealing has been questioned for lacking clarity and certainty famously, judges of the Federal Court of Australia could not agree on whether The Panel's use of Channel Nine segments constituted a fair dealing in particular cases. The defence has also failed to keep up with technological and cultural developments.
At long last, the Attorney-General, Philip Ruddock, has introduced the hefty 219-page Copyright Amendment Bill 2006 into Parliament, declaring, ''The Government is committed to dealing with these challenges to copyright head-on, while seeking to also acknowledge the opportunities technology presents. We want laws in place which mean copyright pirates are penalised for flouting the law whilst ordinary consumers are not infringing the law through everyday use of copyright products they have legitimately purchased.'' The legislation has three main features. It introduces a range of miscellaneous exceptions to copyright infringement, provides for the stronger protection of digital copy protection and access codes demanded by the Australia-United States Free Trade Agreement, and will provide a wider array of civil and criminal remedies for copyright owners.
Unfortunately, the Bill will not meet its laudable objectives. The legislation is not ''net neutral'' thus it will apply to particular digital technologies in highly specific ways. It is also drafted in a highly convoluted way which will make it difficult for judges and lawyers to understand let alone everyday consumers, technology developers, and capitalists. It will certainly provide copyright owners with a wide range of civil and criminal remedies in respect of infringement of economic rights and circumvention of ''technological protection measures'', but it does not fix the manifold problems with the defence of fair dealing.
Instead, the Federal Government has created a range of nugatory miscellaneous exceptions, which are narrowly tailored to particular subject matter and technology, and specific purposes and activities. There is limited scope for recording broadcasts for replaying at a more convenient time (time- shifting). There is also a range of technology- specific provisions which allow for the reproduction of copyright material in a different format for private use. In particular, the legislation allows for format-shifting of sound recordings (in other words, space-shifting). However, some commentators have suggested that the tightly worded provisions would not currently cover the everyday use of an iPod or other MP3 player. Moreover, the podcasting and webcasting of radio broadcasts and similar programs has been excluded from the scope of such an exception.
The Government has also proposed a strange, catch-all provision which deals with various miscellaneous provisions. This clause deals with the use of copyright material for certain residual purposes such as non- commercial use by libraries, archives, and educational institutions, and for satire and parody. Such activities are subject to the so- called three-step test under World Trade Organisation regulations. This clause looks unworkable. Consider a cartoonist using a copyright work for instance, wittily depicting Labor Senator Stephen Conroy as a Dalek. The parodist would have to demonstrate that such a use was a special case, that the use did not conflict with the normal exploitation of the copyright work, and that the use did not unreasonably prejudice the interests of a copyright owner. The cartoonist would also have to engage in an interpretation of three-step test under international trade law (which will be difficult, given that there has been only one inconclusive WTO panel judgment on the subject). Such preconditions seem somewhat excessive hurdles for a satirist to have to jump.
Such nugatory, miscellaneous copyright exceptions are a poor substitute to the open- ended, flexible defence of fair use in the United States. The Supreme Court of the US has described the defence of fair use as ''the guarantee of breathing space for new expression within the confines of copyright law'' and called the defence ''an engine of free expression''. Not only does the fair use defence cover particular purposes such as criticism, comment, news reporting, teaching, scholarship and research, the US courts have held that it embraces such activities as time-shifting and space-shifting, parody and transformative uses, reverse engineering, and the use of thumbnail images in search engines. The doctrine provides a much wider safe harbour than that offered by the Government's Bill. The Bill needs reform in terms of form and content to meet academic Paul Goldstein's triple bottom line of ''brevity, simplicity and fairness'' and to ensure consumers, libraries, educational institutions, and technology developers enjoy the same freedoms and liberties enjoyed by their US counterparts.
Dr Rimmer is a senior lecturer at the ANU College of Law.
This guest post was first published as a guest opinion in the Canberra Times, 13 November 2006
See the Senate Report on the Copyright Amendment Bill 2006 (just released)
Media commentary on the Copyright Amendment Bill
- Barclay, P. "Piracy, Consumers and the Digital Age", Australia Talks Back, ABC Radio National, 15 November 2006, featuring the Attorney-General Philip Ruddock, Melissa de Zwart, David Brennan and Matthew Rimmer.
- Murray. L. "Soon Recordings Will Be A Crime", The Sydney Morning Herald, 14 November 2006.
- Funnell, A. "Gauging the Great Google Game Plan", the Media Report, ABC Radio National, 9 November 2006.
- Guest, A. "Copyright Law Changes Face Criticism", PM, ABC, 7 November 2006.
- Skatssoon, J. "New Laws May Cripple 'Online' Searching", ABC Science Online, 7 November 2006.
Labels: guest post
Monday, November 13, 2006
World Usability Day
[This is a guest post, written by David Vaile -- Catherine]
14 November 2006 is World Usability Day
(Sydney event: http://www.worldusabilityday.org/event/show/163)
14 November 2006 is World Usability Day
(Sydney event: http://www.worldusabilityday.org/event/show/163)
“Every citizen on our planet deserves the right to usable products and services. It is time we reframe our work and look at a bigger global picture. The time is right, the interest is here. 'User friendly' is a common and understandable term; people understand that the world should work well. Now, we have to encourage them to take the message to the streets and say, "We will not stand for it anymore, we want our world to be usable.”
“No more excuses, no more managers complaining about budgets and schedules. No more marketing people selling functionality and power that is more than we need. No more consumers buying things we cannot or do not need to use."- Elizabeth Rosenzweig, "World Usability Day: A Challenge for Everyone"
This global day of celebration of usability (one of my favourite risk management tools) invites a speculation about usability and our domain of open content licences or free/open source software licences.
- Who are the 'users' of these licences: both authors and 'consumers'? Intermediaries? Institutions? Aggregators? Integrators? Editors? Later authors?
- What is important to these groups in being able to use a suitable licence without unnecessary fuss or confusion?
- What features of specific licences, or the licence model, helps or hinders such use?
We could also ponder the significance of 'open standards' for the development and adoption of intuitive common interfaces or document models. Such commonality and predictability is important for supporting learning and intuitive guessing about how similar things work: you can learn one system and then guess how others work.
- Are existing licences standardised and predictable enough, or are they monuments to the idiosyncratic individual "creativity" of their authors? Is this a fair question? Are 'standards' possible yet, or at all?
- Are they compatible enough between various alternate models/licences/ versions, or a jumble of incompatible systems like in the old days of IT and networks?
See also the current GPL v3 discussions, including inter-version compatibility http://www.cyberlawcentre.org/2006/gpl/resources.htm
This prompts consideration of the negative impact of increasing complexity of the range of licence options (both between licences, and among options for a given licence); and the potential difficulty for neophytes in interpreting how the specific provisions of particular licences will actually operate in the real world (and hence, whether a given licence will do what they hope, or raise other problems).
Users must struggle with a double hit of complexity: in both the law (copyright law is notoriously complex and perverse!?) and technology (a magic black box for many people who just want to get on with it).
It can thus be hard for mere mortals to 'grok' (comprehensively understand) how a given open licence and its technology or content interact.
- Is there anything that could be done to reduce this steep learning curve, this barrier to wider adoption and use?
Finally, it is worth distinguishing between "User-centred design" and "Usability Evaluation" approaches. Both rely on going back to the actual users, not relying on your own guesses. But "Usability evaluation" is more common, and more limited - it can be done any time, and here lies the trap. In practice it is often done at the end of a project, seen merely as part of testing. But this is usually too late, since it is by then too expensive to fix fundamental or conceptual bugs. "User-centred design" however is much preferable, as it starts with the early design stage and goes through, giving feedback at every stage. Done right, it can catch the fundamental errors early enough to change or dump the plan.
Applied to open licences, this might encourage early resort to real world research into what the users actually think, want and need, and what gets in their way, rather than further expert elaboration based on received assumptions from earlier rounds of these licences. Is anyone doing this?
Labels: guest post
Wednesday, November 08, 2006
Citizendium v. Wikipedia
[This is a guest post, written by Roger Clarke. -- Ben]
Wikipedia is the most prominent of the new-age collaborative information sources. But even its champions acknowledge that there are challenges, and choices to be made.
Larry Sanger, one of Wikipedia's co-founders, has long been dissatisfied with some aspects of its management. He announced on 17 October 2006 his intention to spawn a fork, or republished version, of Wikipedia that is intended to progressively develop higher-quality, more reliable articles.
Sanger envisages the core difference about Citizendium as being a set of editors, with interleaved scope, who will take responsibility for approving articles and amendments to articles. There will be rules that are rather less loose than Wikipedia's (e.g. contributors must declare their 'real names' - whatever that means), 'constables' who will enforce the rules, and a process for appointing and controlling editors and constables. Sanger intends that the appointment process will have collaborative features, but the proposal at this stage is sketchy.
The essence of the debate is whether and how to quality-assure the content of collaborative information sources. The orthodoxy within the open movement is the 'many eyes' principle: errors will come to attention and be addressed, because of the sheer volume of people who are looking and who are empowered to do something about them. The risk of pollution is high, and anarchy looms; but believers say it can be avoided.
Some people are nervous about pollution and anarchy, and uncomfortable with constructive looseness. They prefer layers of controls, and trust in a few rather than trust in the 'great unwashed hordes'. They point to the increasing incidence of Wikipedia pages being frozen for short periods, to let tempers cool. (As this was being written, the Wikipedia entry for 'Wikipedia' was locked, with the explanation "Because of recent vandalism or other disruption, editing of this article by unregistered or newly registered users is currently disabled. Such users may discuss changes, request unprotection, or create an account.").
The distinctions between the two approaches might be seen this way:
There are many aspects of Citizendium that cast doubt on its ability to survive any longer than its predecessor Nupedia, let alone thrive. Will the elite few prove to be as energetic as the egalitarian hordes? Will the bureaucracy of editorial committees cause even the first few score pages to miss their window of opportunity? Will any of the pages ever score high enough on Google rankings to be noticed? Will the quality difference matter to people, or will the 'good enough' of Wikipedia trump the new approach, just as Microsoft's Encarta, by using some of Funk & Wagnall's middle-brow encyclopaedia, trumped Britannica? Will the inevitable re-branding as something trendier like 'Zendi' be enough to revive interest?
Ultimately, the community will vote with its feet, or consumers will determine what the market wants by paying with their clicks and eyeballs (choose your preferred metaphor). Perhaps the venture's greatest contribution will be to help us learn about quality assurance of open content.
[This was a guest post, written by Roger Clarke. It is available from Roger Clarke's website under either an AEShareNet
licence or a Creative Commons 
licence. -- Ben]
Wikipedia is the most prominent of the new-age collaborative information sources. But even its champions acknowledge that there are challenges, and choices to be made.
Larry Sanger, one of Wikipedia's co-founders, has long been dissatisfied with some aspects of its management. He announced on 17 October 2006 his intention to spawn a fork, or republished version, of Wikipedia that is intended to progressively develop higher-quality, more reliable articles.
Sanger envisages the core difference about Citizendium as being a set of editors, with interleaved scope, who will take responsibility for approving articles and amendments to articles. There will be rules that are rather less loose than Wikipedia's (e.g. contributors must declare their 'real names' - whatever that means), 'constables' who will enforce the rules, and a process for appointing and controlling editors and constables. Sanger intends that the appointment process will have collaborative features, but the proposal at this stage is sketchy.
The essence of the debate is whether and how to quality-assure the content of collaborative information sources. The orthodoxy within the open movement is the 'many eyes' principle: errors will come to attention and be addressed, because of the sheer volume of people who are looking and who are empowered to do something about them. The risk of pollution is high, and anarchy looms; but believers say it can be avoided.
Some people are nervous about pollution and anarchy, and uncomfortable with constructive looseness. They prefer layers of controls, and trust in a few rather than trust in the 'great unwashed hordes'. They point to the increasing incidence of Wikipedia pages being frozen for short periods, to let tempers cool. (As this was being written, the Wikipedia entry for 'Wikipedia' was locked, with the explanation "Because of recent vandalism or other disruption, editing of this article by unregistered or newly registered users is currently disabled. Such users may discuss changes, request unprotection, or create an account.").
The distinctions between the two approaches might be seen this way:
Wikipedia | Citizendium | |
| QA Principle | 'Many eyes' | 'A few good men' |
| QA Style | Open collaboration among many | An inner clique of guardians, possibly self-perpetuating |
| QA Process | Informal review, by genuine 'peers' as in 'equals' | Formal review, by an approved set of 'peers' as in 'peers of the realm'? |
| Editorial Style | Self-organising and/or Anarchic | Hierarchical command and control, but with a collaborative appointment process? |
There are many aspects of Citizendium that cast doubt on its ability to survive any longer than its predecessor Nupedia, let alone thrive. Will the elite few prove to be as energetic as the egalitarian hordes? Will the bureaucracy of editorial committees cause even the first few score pages to miss their window of opportunity? Will any of the pages ever score high enough on Google rankings to be noticed? Will the quality difference matter to people, or will the 'good enough' of Wikipedia trump the new approach, just as Microsoft's Encarta, by using some of Funk & Wagnall's middle-brow encyclopaedia, trumped Britannica? Will the inevitable re-branding as something trendier like 'Zendi' be enough to revive interest?
Ultimately, the community will vote with its feet, or consumers will determine what the market wants by paying with their clicks and eyeballs (choose your preferred metaphor). Perhaps the venture's greatest contribution will be to help us learn about quality assurance of open content.
[This was a guest post, written by Roger Clarke. It is available from Roger Clarke's website under either an AEShareNet
licence or a Creative Commons licence. -- Ben]Labels: guest post, open content, wikis
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