Thursday, August 07, 2008
So at the end of my last post I suggested that, if the Government introduced new free use provisions, based on the UK legislative model, to deal with the decision of the High Court in CAL v NSW, then there may be some constitutional problems in doing so. I mentioned two provisions - section 51(xviii), the constitutional copyright power; and section 51(xxxi), the power with respect to acquisition of property on just terms.
Any arguments with respect to section 51(xviii) can arguably be easily dealt with. What's interesting about this power is that, for a long time, it was believed that the Parliament could actually do very little with respect to copyrights because of the narrow interpretation given in the decision of Attorney-General (NSW) ex rel Tooth & Co Ltd v Brewery Employees' Union of NSW  HCA 94; (1908) 6 CLR 469. In that case it was found that the union label trade mark wasn't valid because such marks were not around in 1900, when the Constitution was framed. On that basis, for about eighty-five years it was believed that section 51(xviii) gave the Parliament very narrow power with respect to making IP laws. However, the 1994 decision Nintendo Co Ltd v Centronics Systems Pty Ltd  HCA 27; (1994) 181 CLR 134 and then the subsequent 2000 decision Grain Pool of Western Australia v Commonwealth  HCA 14; 202 CLR 479 - revealed that the HCA believed that section 51(xviii) was quite a wide power, leading to broader concerns that there might not actually be any limits on section 51(xviii).
As such, given this broad interpretation, it would be unlikely that such free use exceptions would fall foul of section 51(xviii), unless some sort of constitutional argument could be raised that the term "copyrights" as it appears in the Constitution requires that remuneration be given to the copyright owner. That, however, would probably cause all types of chaos, and is therefore unlikely. It would be interesting to run though...however, in light of the CAL v NSW decision, I am in no hurry to get another copyright case before the HCA.
It is the second provision, however, that may cause constitutional difficulties for these types of exception. Section 51(xxxi) has occasionally popped up in IP decisions over the last fifteen years (see Australian Tape Manufacturers Association Ltd v Commonwealth  HCA 10; (1993) 176 CLR 480 and Stevens v Kabushiki Kaisha Sony Computer Entertainment  HCA 58; (2005) 221 ALR 448). This constitutional section was actually mentioned at several points in the joint judgment of CAL v NSW:
At : In any event, with an echo of s 51(xxxi) of the Constitution, the Spicer Committee made its recommendation for government use of copyright material in the following terms:
"The Solicitor-General of the Commonwealth has expressed the view that the
Commonwealth and the States should be empowered to use copyright material for
any purposes of the Crown, subject to the payment of just terms to be fixed, in
the absence of agreement, by the Court. A majority of us agree with that view.
The occasions on which the Crown may need to use copyright material are varied
and many. Most of us think that it is not possible to list those matters which
might be said to be more vital to the public interest than others. At the same
time, the rights of the author should be protected by provisions for the payment
of just compensation to be fixed in the last resort by the Court." (emphasis
And then again at paras  - :
The purpose of the scheme is to enable governments to use material subject to copyright "for the services of the Crown" without infringement. Certain exclusive rights of the owner of "copyright material" are qualified by Parliament in order to achieve that purpose. It is the statutory qualification of exclusive rights which gives rise to a statutory quid pro quo, namely a statutory right in the copyright owner (here a surveyor) to seek "terms" upon which the State (excepted from infringement by the legislature) may do any act within the copyright (s 183(5)) and to receive equitable remuneration for any "government copies" (s 183A). With reference to the use by the Spicer Committee of the constitutional expression "just terms", it may be added that CAL conducted its case in this Court on the footing that the statutory scheme afforded "just terms" to copyright owners.
Given that CAL proceeded on the basis that the Crown use of copyright statutory licence scheme was "just terms" under section 51(xxxi), then it is arguable that removing this financial aspect may put such a provision in breach of section 51(xxxi). This may particularly be the case if the government continued to charge for the use of the survey plans. Certainly, as the law currently stands, it is available to the Government to use the fair dealing and other exceptions provided in the 1968 Act (in fact, as noted in the CAL v NSW joint judgment, if these provisions apply, then the statutory licence scheme doesn't - see paragraph .) However, would the inclusion of provisions that give the government a free pass to use copyright-protected works created by others, for fulfilment of their statutory obligations and what reasonably flows from those obligations, be valid under section 51(xxxi)?
In conclusion, although I have dedicated a whole chapter in my doctoral thesis to determining the boundaries of the copyright power of the Constitution and the concurrent effect on the Australian public domain, I will admit that future intellectual property cases are less likely to be concerned with section 51(18) and more to do with section 51(31). And, to end on a lighter note, that makes The Castle required viewing for anyone involved in intellectual property!
In the course of the decision, the High Court referred to the position in other jurisdictions with respect to Crown use of copyright works. It cited the UK position under the Copyright, Designs and Patents Act 1988 (UK) and the different types of what it would describe as "free use provisions" under that law. These are exceptions to infringement on the grounds of different types of public administration:
- Section 45 -"Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings" and the reporting of such proceedings;
- Section 46 - "Copyright is not infringed by anything done for the purposes of the proceedings of a Royal Commission or statutory inquiry", its reporting and the issue to the public of a report of the Royal Commission or statutory inquiry;
- Section 47 - Where material is open to public inspection due to a statutory requirement or statutory register, copyright is not infringed in a literary work in certain cases and not including the issuing of the work to the public; however pursuant to section 47(2) "copyright is not infringed by the copying or issuing to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed" etc.
- Section 48 -The Crown can communicate material to the public in the course of public business, and "copy the work and issue copies of the work to the public without infringing any copyright in the work."
- Section 49 - Material comprised in public records can be copied and supplied to any person without infringing copyright.
- Section 50 - "Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright."
Even without that distinction, however, another argument rears its head: the constitutionality of introducing such free use provisions. Two sections of the Australian Constitution would arguably be involved: section 51(xviii), which gives the Federal Parliament the power to make laws with respect to "Copyrights, patents of inventions and designs, and trade marks"; and section 51(xxxi), which also provides power to the Federal Parliament to make laws with respect to "The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."
I have just realised that this post is getting very long, so it is going to be split into two. Constitutional analysis forthcoming!
Friday, June 13, 2008
On the CCau website it is stated that:
Getting everyone's feedback on the v3.0 licences is particularly important
because we've decided to depart slightly from our traditional drafting approach.
Rather than writing the licences as a straight translation from the Unported (ie non-country specific) licences provided by Creative Commons International, we've instead decided to base them on the excellent licences produced last year by our friends in New Zealand, which they in turn based on the England and Wales licences. The great thing about these licences is that they're written in plain English rather than legalese - which means they're much easier for non-lawyers to understand.
Comments are requested by 1 August 2008, to either email@example.com or the CCau mailing list. I imagine that myself and my colleagues on the 'Unlocking IP' project will submit comments on the new licences, and we'll cross post any comments here at the House of Commons too.
Thursday, June 12, 2008
Some months ago, I participated in a public panel session run by a
university department. It was video-recorded. The university
requested from all participants a copyright release for
"non-commercial educational purposes - for example, a teaching
resource for undergraduate and postgraduate students, and public
access to short excerpts via our web site". All participants signed
that release. So far so good.
Today, I was approached by the university in question to sign a much
more substantial 'Presenter's Deed of Consent'. It included "a
non-exclusive, royalty free, worldwide, irrevocable, and perpetual
licence to Exploit", including right to sub-licence. There was no
mention of constraint to non-commercial uses only, i.e. it authorises
commercial uses. (Added to that, "The Presenter is not entitled to
claim a fee or royalty for the use of the Recording by the University
or its sub-licensees").
The reason for this dreadful, old-fashioned proprietorial form of
consent transpired to be that the University is participating in the
about-to-be-launched iTunes U Oz version.
iTunes is an Apple product and service to provide paid access to
music, etc. iTunes U is an extension that enables universities to
put material up on that site:
Again, so far so good, because multiple channels for discovery of and
access to content is a good thing.
Here comes the rub.
The iTunes conditions appear to preclude the University from making
material placed on iTunes U subject to an open content licence. It
appears that the conditions apply not only to the version available
through iTunes, but also to versions available through other channels.
(Note: I briefly looked on the iTunes site for information on the
conditions and licences, but had little success).
That would mean that anything that a university makes available
through iTunes is locked-down and proprietised. And the new breed of
profit-oriented universities will find that just too tempting, and
will seek to 'extract rents' as economists are wont to say, or
'charge serious money' as the rest of us do.
Unless and until the iTunes U conditions are found to be different
from what I fear (or they are changed), content-producers who want
their materials to be openly available need to refuse permission for
them to be made available through that channel.
Dr Roger Clarke
Monday, May 19, 2008
Possible outcomes from this include:
- Some meaningful consideration of how many web pages, on average, come about from a single decision to use a licence. For example, if you licence your blog and put a licence statement into your blog template, that would be one decision to use the licence, arguably one licensed work (your blog), but actually 192 web pages (with permalinks and all). I've got a few ideas about how to measure this, which I can go in to more depth about.
- How much of the Australian web is licensed, both proportionally (one page in X, one web site in X, or one 'document' in X), and in absolute terms (Y web pages, Y web sites, Y 'documents').
- Comparison of my results to proprietary search-engine based answers to the same question, to put my results in context.
- Comparison of various licensing mechanisms, including but not limited to: hyperlinks, natural language statements, dc rights in tags, rdf+xml.
- Comparison of use of various licences, and licensing elements.
- Changes in the answers to these questions over time.
Wednesday, April 30, 2008
Okay, so here's the latest results, including hyperlinks to searches for you to try them yourself:
- all (by regex: .*) : 36,700,000
- gpl : 8,960,000
- lgpl : 4,640,000
- bsd : 3,110,000
- mit : 903,000
- cpl : 136,000
- artistic : 192
- apache : 156
- disclaimer : 130
- python : 108
- zope : 103
- mozilla : 94
- qpl : 86
- ibm : 67
- sleepycat : 51
- apple : 47
- lucent : 19
- nasa : 15
- alladin : 9
And here's a spreadsheet with graph included: However, note the discontinuity (in absolute and trend terms) between approximate and specific results in that (logarithmic) graph, which suggests Google's approximations are not very good.
Sadly this blogger is not in the money, but there are some interesting names on the lists. Some make perfect sense - for example, Australian artist Pro Hart. Then there are the numerous estates who are owed money, including the estate of Ernest Hemingway, AA Milne, and Australian architect Harry Seidler. Then there are the more unusual 'publishers' -for example, eBay Australia & New Zealand and Air Caledonie International. I'm not sure what Air Caledonie has published or who's reproduced it, but I want to go to New Caledonia after visiting that website.
Monday, February 18, 2008
If you look around, you can probably find some graphs based on this data, and that's probably interesting in itself. Tomorrow I'll see about dusting off my Perl skills, and hopefully come up with a graph of the growth of Australian CC licence usage. Stay tuned.
* If you knew about this, why didn't you tell me!
Monday, September 24, 2007
More information is available here on the SFLC website and here on Arstechnica.
(Hat tip: Roger Clarke)
Lessig has also posted a copy of the complaint available here.
Discussion on Slashdot is also available here.
(Hat tip: Matthew Rimmer)
Friday, September 21, 2007
As I have stated in a previous post:
"I think it is essential to reiterate that there are multiple legal issues at play and it is important not to get them confused. While I spoke about issues regarding attribution requirements under the license in my previous post, it is important not to mix this up with moral rights under the Copyright Act (which applies in Australia and are explicitly referenced in the Australian Creative Commons licences, but not in other jurisdictions like the US and the US Creative Commons licenses). Further, moral rights, and terms under the license apply in relation to the copyright owner/licensor- which in many cases is the photographer rather than the individuals in the photographs.Very useful information can also be found in this post by Jessica Coates.
In some respects their advertising campaign is a very interesting use of Creative Commons licensed materials, providing some nice publicity for the photographers who have chosen to add an open license to their material which permits commercial use. However, it is also important for Virgin to read the terms of the license closely and fulfil their obligations under other areas of law."
According to SMH the family of Alison Chang (a young girl in one the images used by Virgin Australia - with the slogan 'dump your pen friend') has named "Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp" as defendants. Apparently Chang's family have accused Virgin of failing to credit the photographer by name and also accuses the companies of libel and invasion of privacy. Chang's family and the photographer, Justin Ho-Wee Wong, are seeking damages.
As Jessica points out in her post mentioned above:
"...some commentators have suggested that the failure to deal with the issue of model clearances represents a flaw in the CC licences. However, the licences make it very clear that they merely provide copyright permissions, and that they do not purport to deal with any other area of law. Due to the vast number of laws that can come into play when a person is using a copyright work (eg defamation, privacy, competition) it would be impossible for the licences, or the person issuing the licence for that matter, to definitively cover all potential legal issues in placing it releasing it for general use. There is arguably an onus on the person making use of the work to identify any laws their particular use might breach, and to make an effort to obtain any additional permissions that are needed - particularly if their use is large-scale and commercial."I am not quite sure what will become of all this especially because of the array of laws and different jurisdictions in play. I am actually quite stunned that it has gone this far. It will be interesting to discover in what legal context Creative Commons was named as a defendant in this lawsuit. It is possible that this relates to Creative Commons licenses not dealing with the myriad of legal issues that could be relevant- if this is the case I can't see how this suit will be successful against Creative Commons (for the reasons Jessica points out above).
Friday, August 31, 2007
More info is available here and here.
Tuesday, July 31, 2007
(Hat tip: Matthew Rimmer)
Thursday, July 26, 2007
Wednesday, July 25, 2007
I think it is essential to reiterate that there are multiple legal issues at play and it is important not to get them confused. While I spoke about issues regarding attribution requirements under the license in my previous post, it is important not to mix this up with moral rights under the Copyright Act (which applies in Australia and are explicitly referenced in the Australian Creative Commons licences, but not in other jurisdictions like the US and the US Creative Commons licenses). Further, moral rights, and terms under the license apply in relation to the copyright owner/licensor- which in many cases is the photographer rather than the individuals in the photographs.
In some respects their advertising campaign is a very interesting use of Creative Commons licensed materials, providing some nice publicity for the photographers who have chosen to add an open license to their material which permits commercial use. However, it is also important for Virgin to read the terms of the license closely and fulfil their obligations under other areas of law.
Monday, July 23, 2007
It is important to note that the person in the photograph is not necessarily the copyright owner. Generally it is the photographer that is the owner of copyright, though some exceptions apply, notably, in the case of commissioned photographs. As a result, rights may not arise for the individuals in the photographs under copyright law (they will have the look elsewhere, such as trade practices law, defamation or privacy). This 'photographers and copyright' information sheet by the Australian Copyright Council provides a useful overview.
Theoretically, the copyright owner in all of these cases has chosen to attach a Creative Commons attribution license (which allows for commercial use).
While there are multiple legal issues in play here, I am interested in whether Virgin has satisfied their requirements under the Creative Commons license.
For example, the first image that they use is a turtle ("websites shouldn't take long to load"). The link available on the bottom left hand corner of the picture goes to the Flickr user's photo page (which happens to contain 1,323 photos). From there, you will have to locate the particular photo in question and click on the photo page (I managed to locate Big Turtle in the Masoala Hall, Zurich using tags). Under 'additional information' you can click on 'some rights reserved' to discover that the photo is licensed under a Creative Commons Attribution 2.0 license. I query if link to the user's page provided by Virgin satisfy the attribution requirements under the license. If you look at the legal code for the license above, Section 4 outlines restrictions to the rights granted under the license:
a. ...You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform...While 'reasonable to the medium or means You are utilizing' allows for a bit of flexibility, it appears to me that Virgin Australia could have done more by way of attribution. They provide a link to the author's Flickr page, however you still have to sift through this to find the actual photo. Only after you find the photo do you see which license is attached (and other details such as the title of the photograph). I am not sure that providing a link - which has a link - which contains a link to the license constitutes 'including a copy' of the license/URI as required under the 4 (a) license. Similar issues arise with regard to 4(b). I would love to hear what other people think about this issue and whether they believe the terms of the licence have been breached.
b. ... You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work...
The Virgin scenario bears a (slight!) resemblance to a Canadian case involving a photographer and the use of a CC licensed image by an MP (the photographer disagreeing with the political views of the MP). Attribution issues were raised here as well.
It is a shame that this and other issues have presented themselves in reference to a campaign that is in some respects an innovative and interesting use of Creative Commons licensed materials.
(Pictured: "Big Turtle in the Masoala Hall, Zurich", alex.ch, available under Creative Commons Attribution License 2.0 license.)
Big thank you to Catherine for her help with this post!
Monday, July 16, 2007
Read more in this post on TechnoLlama.
Wednesday, July 11, 2007
Yesterday the Copyright Tribunal approved an application to increase licensing fees for nightclubs and dance parties. The application was made by a copyright collecting society called Phonographic Performance Company of Australia (PPCA). PPCA are calling the decision 'a better deal for artists' I am calling it 'license fee increase of around 1400%- that is massive'.
The decision can be found here [RTF]. Brief outline below.
Phonographic Performance Company of Australia Limited (ACN 000 680 704) under section 154(1) of the Copyright Act 1968 (Cth)  ACopyT 1Framework: The Tribunal discusses the statutory framework for its power to confirm or vary licence schemes. At  they note that this involves "a value judgment as to what it considers reasonable in the circumstances. It is not usually possible to calculate mathematically the correct licence fee in any particular case."
Nightclubs and Dance Parties: The decision discusses a study commissioned by the PPCA raising ground breaking points such as nightclubs play music and sometimes nightclubs have dance floors. Nightclub operators presented evidence of their declining patronage and how they usually operate below capacity. Dance parties are usually one off events, the popularity of these events have also declined according to evidence presented to the Tribunal.
Current Tariffs: Current license fees for nightclubs are 7.48 cents per person per night (number is based on licensed capacity of the venue). The amount is payable for each area where music is playing (if applicable, different rooms, levels etc). Dance parties need to pay 19.8 cents per person, based on estimated attendance.
The Respondents: The Respondents include Australian Hotels Association, Clubs Australia, Clubs NSW, Explorer Cruise Lines Ltd and others together with Nightclub Respondents. Issues raised included the definition of nightclub, whether license fees should be calculated based on attendance rather than capacity, non protected music, whether the extent that patrons are willing to pay for recorded music can be established, the way in which the fee is calculated for dance parties and whether not for profit organisations liked Mardi Gras should be treated differently from other organisations.
Willingness to Pay: The PPCA engaged Allen Consulting Group (you might remember their report into the economic effects of copyright term extension) to estimate the value of sound recordings in nightclubs and dance parties. Allen Consulting utilised a 'choice modelling survey' to determine 'willingness to pay'. The nightclub respondents criticised the survey claiming that it was "divorced from economic and competitive reality" and provided unrealistic choice sets (at ) . The case continues with various factors relevant to the assessment of economic impact.
Judicial Estimate: With respect to nightclubs the PPCA claimed $2.32 per person. The Tribunal discounted this rate based on non-protected music (-20%), competition from other late night venues providing live or recorded music (-20%) however chose not to discount for actual patronage being below or above capacity. Further:
"The division of the estimate of willingness to pay should be adjusted to reflect the fact that the entrepreneurial risk in relation to the operation of a nightclub is undertaken by the operator and not by the Society or by APRA...A more appropriate division, therefore, would be 50% to the operator and 25% to each of APRA and the Society. " at .The Tribunal arrived at a figure of $1.05 for the use of protected music at nightclubs.
PPCA claimed $15.37 for value of music at dance parties. This figure was reduced by 20% for non-protected music and entrepreneurial risk, leaving this figure at $3.07 per person.
Not for profit: Mardi Gras made an application under s 157(2) of the Copyright Act seeking a determination that the license scheme is unreasonable in their circumstances. The Tribunal found:
"Clearly, much of Mardi Gras’s activities are intended to serve a community purpose. However, that does not mean that the Society, and its members, must also be compelled to support those purposes. It is not for copyright owners, or any other private group in the community, to subsidise public instrumentalities or charities" at .Outcome: The scheme proposed by the PPCA was approved subject to adjustments (to rates and defintions) indicated by the Tribunal. The application by Mardi Gras was refused.
The case provides interesting insight into the calculation of licensing fees. The Tribunal noting that:
"The exercise that results in that figure is, of course, to a considerable extent, arbitrary and artificial. Nevertheless, it has a rational basis for arriving at what has been described as a judicial estimate of what a reasonable but not too anxious licensor would require to be paid and what a reasonable but not too anxious nightclub operator would be prepared to pay for the right to play recorded music at nightclub venues" at .In the end, it is the consumer who has to pay. Both through increased prices and, if this leads to closures, then reduced choice. It is the extent of this impact that is unclear. If this decision leads to the closure of less mainstream clubs then it is important to ask which artists are actually getting the better deal.
More reports here (The Age) and here (SMH).
Update: More info on the economic analysis in the Tribunal decision available here on Core Economics (hat tip: Peter Black).
Friday, June 15, 2007
"The ABC is finalising plans to re-sell The Chaser's War on Everything to overseas TV networks.Further:
The satirical show has grown an international following thanks to the ABC's policy of allowing its shows to be accessed for free through its website and uploaded to video sharing sites like YouTube." (Offshore interest for Chaser's stunts, SMH, 13 June 07)"
Incentive for other networks to consider alternate business models.
"Gibson added that ABC's decision to make the show available as a free download from its website had actually increased, not threatened, sales of the show on DVD.
This contrasts with the views of most commercial networks, which go to extreme lengths to control the distribution of their content."
The fact that more and more people have been watching the show due to improved accessibility (as easy as hitting 'download') increases the audience of consumers interested in purchasing DVDs (with better quality, deleted scenes, commentary etc- all value adding) not to mention a host of other merchandise (books, clothes etc) and revenue from advertising placed on the show's website.
The success of the model will vary depending on the show (ABC is a public broadcaster). However, it is definitely an approach that should be more widely considered.
Monday, March 26, 2007
Take a look at this follow up post about some of the difficulties associated with licensing on Flickr.