Unlocking IP conference - 18-19 November 2004New models for sharing and trading intellectual property
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Session 1 speakers
Keynote: Do we need to Unlock IP?

Dr Evan Arthur
Acting Group Manager, Innovation & Research Systems, Department of Education, Science and Training (DEST)

Publish or Protect? Public Interest Considerations in the Management of Intellectual Property in Education, Training and Research

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The paper will analyse Australian Government policy interests in the management of IP in education, training and research. It will discuss the balance between dissemination of publicly funded information to advance knowledge and sequestration of IP to facilitate commercialisation. The paper will analyse some current approaches to managing copyright in education, training and research with particular reference to approaches to charging for publicly funded learning materials and scholarly publications. The paper will describe current Australian Government initiatives to improve access to publicly funded information.

Evan Arthur is currently responsible for coordinating DEST involvement in innovation and research issues, including the implementation of Backing Australia’s Ability – Building our Future through Science and Innovation (BAA). A key BAA initiative is the National Collaborative Research Infrastructure Strategy, a $542 million program to strengthen Australia’s research infrastructure.

Responsible for coordinating Commonwealth involvement in issues associated with the use of information and communications technology (ICT) in education, Dr Arthur is a key policy maker in this vital area. As Deputy Chair of the principal cross sectoral body advising Commonwealth, State and Territory Ministers, Evan is associated with high level decisions relating to the use of ICT in education. He has a doctoral thesis in the area of Stoic Philosophy and completed studies at Cambridge University (UK) and at Newcastle University (Australia).

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Prof Yochai Benkler,
Professor of Law, Yale Law School, USA


Commons-based production

Information, knowledge, and culture, and how we communicate, are constitutive of individual autonomy, the functioning of democracies, and the building blocks of human development. How we structure our information production system, and how we permit and constraint access to, and control over, information, knowledge, and culture, is therefore a decision that must engage our most basic moral commitments.

The emergence of sharing and commons-based production as a sustainable modality of production in the networked information economy offers significant improvements over the industrial information economy along all these dimensions. It allows individuals to exercise greater control over their own information environment and expression; it provides an alternative system of mass communication for critical democratic discourse, and it offers a source of steady flows of information-embedding goods and services, knowledge, and culture that are not constrained to focus on those who are able to pay the most.

Yochai Benkler's research focuses on the effect of laws regulating information production and exchange on the distribution of control over information flows, knowledge, and culture in the digital environment. In particular the neglected role of Commons-based approaches towards management of resources in the digitally networked environment, and large-scale effective sharing of privately owned goods and resources.

He has written about the economics and political theory of rules governing telecommunications infrastructure, especially wireless communications; rules governing private control over information, in particular intellectual property; and relevant aspects of US constitutional law. He is currently a member of the Board of Advisors for Public Knowledge, an organization advocating a fair and balanced approach to copyright and technology policy. Recent publications include 'Coase's Penguin, or Linux and the Nature of the Firm', 'Some Economics of Wireless Communications', 'Freedom in the Commons' and 'Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain'.

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Prof James Boyle
Professor of Law, Duke Law School, USA


The Opposites of Property

We have a simple word for, and an intuitive understanding of, the complex reality of property: a richly textured understanding of mine and thine, of rights of exclusion, of division of rights (like tenant / landlord), of partial transfers of rights (like rental). But what about the opposite of property, its antonym, its outside? That, call it public domain or commons, is harder to grasp than its inside. It tends to have a negative connotation: stuff in the Lost and Found office which needs to be back into circulation as property; the tragedy of the commons, the unowned or collectively owned resources will be managed poorly and overgrazed. With intellectual property, this knowledge gap is important, because our IP system depends on a balance between what is property and what isn't. Our art, culture,economy and science depend on the public domain every bit as much as they depend on intellectual property.

The opposite of property is at least as complex and variegated as property itself: not one opposite but many. I want to distinguish two strands of analysis: the anti-monopolistic critique of IP that argues for a rich public domain; and what Yochai Benkler calls " commons-based production".

James Boyle is the William Neal Reynolds Professor of Law at Duke Law School in North Carolina, and faculty co-director of the Centre for the Study of the Public Domain. He writes widely on issues of intellectual property, internet regulation and legal theory. Professor Boyle is a founder and board member of 'Creative Commons', which works to facilitate the free availability of information, art and cultural materials by developing innovative, machine- and human-readable licenses that individuals and institutions can attach to their work.

He is also a member of the academic advisory board of the Electronic Privacy and Information Centre (EPIC), and of Public Knowledge. In 2003, Professor Boyle won the World Technology Award for Law. Recent publications include 'What the Squabbles over Genetic Patents Could Teach Us,' 'The Second Enclosure Movement,' 'Fencing Off Ideas,' 'The First Amendment and Cyberspace: The Clinton Years,' 'Cruel, Mean or Lavish?: Economic Analysis, Price Discrimination and Digital Intellectual Property,' 'Missing the Point on Microsoft' and 'Britney Spears & Online Music'.

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Prof Michael Pendleton
Professor of Law, Law Faculty, Murdoch University, Western Australia


The Copyright Balance

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Creating quasi exclusive legal rights in information, or aspects of it, is essential to provide incentive to create and innovate. Markets are thus created which, without these quasi exclusive legal rights, could not exist. The incentive is the monopoly profit to be reaped from these markets. However, law makers have long recognised the need to balance the interests of competitors and consumers of information with those of the creators. This recognition is reflected in all intellectual property laws and in copyright law may be termed the copyright balance.

Preserving this balance requires constant vigilance. Contracts, whether online or off line, frequently purport to contract out of defences available under copyright legislation, such as fair dealing. The executive government in Australia and elsewhere (the Crown in right of state and federal government)claim copyright in a vast amount of information such as legislation, case law, regulations, tide tables. The copyright term of some of this information is perpetual. There is a case that the copyright balance is severely undermined.

Michael Pendleton is a former Chairman of the Law Reform Commission of Western Australia, a member of the Federal Attorney General's Copyright Law Review Committee, and of the Intellectual Property Committees of the Law Council of Australia and the Law Society of Western Australia. He is also a legal practitioner in jurisdictions in Australia, the UK and Hong Kong.

In a review of Professor Pendleton's 1984 book 'Law of Intellectual and Industrial Property in Hong Kong', the late Dr Steven Stewart QC, Director of the Common Law Institute for Intellectual Property in London described it as only the second anywhere in the world on intellectual property in the modern unified sense of the word and concept. Prior to this there were books solely on trademarks, or patents, or copyright, or designs, or trade secrets, but never as a totality.

He has written eight books on intellectual property published by Lexis Nexis Butterworths, Sweet & Maxwell and CCH International, and over one hundred articles.

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Chair: Professor Graham Greenleaf,
UNSW Law Faculty, Co-director, Baker & McKenzie Cyberspace Law and Policy Centre


Graham Greenleaf is a Professor of Law at UNSW where he teaches most aspects of cyberspace law and the computerisation of law. His main research interests in cyberspace law are in privacy and intellectual property. He teaches courses on Internet governance, Internet content regulation, privacy and surveillance, legal research, and computerisation of law.

He is a co-director of the Australasian Legal Information Institute (AustLII) and the WorldLII Legal Information Institute (WorldLII), and the General Editor of Privacy Law & Policy Reporter. He is also foundation co-director of UNSW Law Faculty's Baker & McKenzie Cyberspace Law and Policy Centre, which is co-hosting this conference.

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The University of New South Wales
  Co-hosted by
Cyberspace Law and Policy Centre AEShareNer Net Working 2004