Commons-ism in One Country? – National and
International Dimensions of Copyright’s Public Domain
Draft paper - 21 November 2007 – Please do not cite
without permission.
Abstract
The rights of the public to make use of works of intellectual creativity
complement the proprietary rights of authors and creators but are less well
understood. Variously and partially described as “commons” or
“the public domain” or “public rights in works”, their
precise shape and components vary among national copyright jurisdictions. But
intellectual commons are also often understood as universal and there is some
truth in this as well. This paper explores various ways we can analyse what
makes up these public rights at both the national and international levels, and
what significance (if any) there is in attempting to understand, preserve or
enhance a national commons or public domain. About 30 elements that contribute
to Australia's public rights in copyright are identified. From this, suggestions
are made for an agenda of practical measures to preserve and strengthen this
national public domain. This research is part of a broader ARC project called
“Unlocking IP”.
Introduction
This purpose of this paper is to investigate at a very
general level what elements make up the rights of the public in copyright works,
as distinct from the rights of authors or the rights of copyright owners. It is
therefore a discussion of ‘public rights’ in works (the terminology
I prefer), rather than private or proprietary rights.
These public rights differ from jurisdiction to
jurisdiction, and are to a large extent determined by the copyright laws (and
other laws) of particular countries, and various practices concerning works
which also differ between countries. However, to some extent there is a common
element in the public rights found in almost all countries, primarily because of
the effect of international copyright agreements (particularly Berne and TRIPS),
but also because of certain practices that are common across most of the globe,
principally because of the Internet.
It is therefore necessary to distinguish between the
‘international’ elements of public rights in copyright, consistent
across most of the globe, and those that are particular to a jurisdiction
(though usually not unique) and which vary to some extent between jurisdictions.
It therefore makes some sense to talk globally about ‘public rights in
copyright’ or ‘the public
domain’ provided we are talking about these internationally shared
elements, but for most purposes it is more accurate to talk about ‘public
rights in the United States’ or ‘the Australian public
domain’. The extent to which the international factors mentioned above
determine the shape of each national public domain needs clarification, but will
only be mentioned briefly here.
The concept of national differences between public domains
is often recognised, at least since Professor Samuelson’s pioneering
attempt in 2001 to ‘map’ the public domain (Samuelson, 2003) was
criticised for being what she agrees was too ‘US-centric’
(Samuelson, 2006). However, authors have generally simply recognised this
characteristic, but have not investigated in detail what makes up particular
national public rights / public domains. The primary aim of this paper is
therefore to give a sketch of what elements make up public rights in one
country, Australia.
The purpose of ‘mapping’ one county’s
public domain, identifying what it contains and what it lacks, is not done
purely out of intellectual curiosity. For anyone who approaches the public
domain from what has been described as a ‘conservancy’ perspective,
such mapping helps to identify an agenda of what needs to be done to protect and
preserve it. The paper concludes with the provisional agenda for Australia that
this process has suggested to me.
Terminology
I have been using the terms ‘public rights’ and
‘public domain’ almost interchangeably. I will explain shortly more
precisely what I mean by ‘public rights’. ‘Public
domain’ is an ambiguous term, commonly given only a very narrow use to
mean those works in which copyright has expired due to the expiry of the
copyright term. It can also have a slightly broader, but still very narrow
meaning to include works which for don’t ever attract copyright
protection, and those over which the author has renounced all claims of
copyright. However, it has a more modern and expansive usage to refer to much
broader notions of public rights, both within copyright (see Greenleaf, 2003)
and in relation to all other forms of intellectual property rights. Samuelson,
(2006) provides seven different maps indicating how different scholars see this
broader notion of the public domain.
For the purposes of this paper I’m going to avoid such
a discussion and will use ‘public domain’ simply as a synonym for
the broad concept of ‘public rights’ in relation to copyright. To
avoid confusion, I will also avoid using the word ‘commons’ wherever
possible, though much of the discussion could also take place using that
term.
Avoiding a misleading
dichotomy
If you use ‘public domain’ in its narrow sense,
then there is a dichotomy of works: some works are in the public domain but only
if they are old enough, and all other works are not.
The approach taken in this paper is very different, and
recognises that almost all works contain both public and proprietary components,
and fall somewhere on a continuum between the extremes of works which are
subject to ‘private rights only’ and those which are subject to
‘public rights only’. At the public rights extreme it is easy enough
to envisage public domain works such as the plays of
Shakespeare
[1]. But for practical purposes all
proprietary works are at least subject to some minimal ‘fair use’
exceptions in copyright law, and so are subject to some public rights. The
proprietary extreme of the continuum is
empty
[2].
The normal nature of works is to be a composite of public
and proprietary rights, with each work situated at some point along a continuum
between the two extremes. There is therefore normally a dichotomy between public
and private rights, but it is one which exists within each work, rather than
between works. The Creative Commons slogan “some rights reserved”
recognises this inherent duality in works and builds on it.
A working notion of
(effective) public rights
For the purposes of this paper, I mean by “public
rights”
[3] all those aspects of copyright
law and practice that are important in determining the rights or liberties of
the public [or a significant class of the public] to use works without obtaining
a licence on terms set (and changeable) by the copyright owner. In other words,
public rights are “The effective extent to which I can use your works
without seeking your permission.”
Including things that determine the effective exercise of
otherwise formal rights reduces the precision of the notion of public rights,
but does allow us to give a richer and more useful description of a
country’s public domain.
The corollary of this definition of ‘public
rights’ is that private/proprietary rights are the rights the owner of
copyright in a work has to refuse to allow another person to use the work,
except on terms set (and changeable) by them.
This approach is similar to that proposed by Littman and
restated by Lessig (2006):
This “public domain” is free. No one is paid
for its use. It is also, and distinctly, “permission free”. I do not
need the permission of Disney to copy the ideas in Steamboat Willie. Not do I
need its permission to make a fair use of its foundational cartoon. In this
sense a resource is “permission free” if the right to use the
resource does not depend on anyone’s subjective will. ... The key freedom
that “permission free” marks is the freedom from a subjective
will.
His good summation is ‘the public domain, technically,
is the permission-free zone defined by the limits of copyright’.
Elements of the global public
domain
There are elements which are common to the public domains of
the vast majority of jurisdictions around the world, principally because of two
main factors: (i) the near-universal adoption of the Berne Convention (1886),
and that the world seems to be heading in the same direction with the TRIPS
Agreement
[4]; and (ii) some effects of the
Internet are global, particularly those associated with search engines, and also
with some viral licences.
Elements determined by the
Berne Convention and TRIPS
The Berne Convention (1886) is arguable the main factor
responsible for determining the size of the world’s public domain, and
many of its features.
Four specific negative elements seem most important in
constraining public domains.
The principle determinant is that in accordance with Berne,
registration of works is not required for copyright (A18 and elsewhere). The
creates a shrunken public domain, as it reverses the default condition of a
work from ‘public’ to ‘proprietary’. If registration is
required, then it can be expected that most works will not be registered, and
the public domain will be correspondingly large. When from 1978-89 the USA
abandoned a compulsory registration system for
copyright
[5] and publication and notice
requirements and belatedly joined the Berne Convention, this was probably the
greatest contraction (since Berne itself) of the scope of the world’s
public domain.
The absence of any requirement for registration is a major
contributor to problems such as the ‘orphan works’ problem, where it
is impossible to locate a copyright owner of a book that is no longer out of
print, but the work is still protected by copyright and therefore cannot be
reproduced by others. Only about 10% of all works registered when the US had a
registration system were re-registered at the end of the 28-year term (Landes
and Posner, cited in Google (2005)), so the other 90% of those works would then
have entered the public domain in the pre-Berne US environment.
Second is the requirement of a minimum copyright term of
life of author plus 50 years (A7(1)). Without this requirement, the minimum term
of protection of some types of works, such as computer programs, may have been
less, and they would have become part of the public domain (in the narrow sense)
earlier.
Third, moral rights (including integrity) may be permanent
according to the interpretation of some state parties such as France.
Fourth, it is a minimum rights treaty (A20) and it is
therefore possible for a consensus of national developments to further reduce
most public rights
There are also aspects of the Berne Convention that support
the existence of public rights, or are at least neutral. These include that
there shall not be protection of ‘news of the day’ or
‘miscellaneous facts’ (A2(8)). Most important is the leaving open
for national decision of the vital areas of (a) compulsory licensing; (b) fair
dealing and protection of (c) legal materials.
The TRIPS Agreement is mainly relevant to determining the
nature of commons in adding the fair use ‘3 step test’, which limits
the extent to which countries can expand the scope of fair use.
De facto global commons
Global practices also contribute to the public rights that
are common throughout the world.
The Internet’s world-wide-web from the early 1990s
created a global commons for
browsing
and private use (including reproduction) of works that authors made accessible
on the Internet. From 1996 search engines have created a global
de facto commons for the
searching of such works. Creation of
the searchable commons has required the acquiescence of copyright owners in
practices by search engine providers which breach copyright on a massive scale
(particularly creation of concordances and caches). This example of creation of
a commons by ‘friendly appropriation and acquiescence’ (Greenleaf,
2006) is probably the largest expansion of the effective public domain to occur,
at least since the development of public libraries turned the right to read
works into an effective public domain. An unresolved question at this stage is
whether Google and other book search facilities will succeed in creating a
global searchable commons for literature which copyright owners have
not made freely accessible via the
Internet.
[6]
Finally, it is worth mentioning that that the most effective
forms of ‘viral’ voluntary licences, when they succeed in attracting
a sufficiently large group of users, create an intellectually very significant
and rapidly expanding global public domain in certain types of information. The
most obvious and important examples are, of course, the domain of open source
software created by the viral GNU General Public Licence (GPL) and some other
Free and Open Source (FOSS) licences, and Wikipedia created under the viral GNU
Free Documentation
License. Viral
licences allow the software or document to which they apply to be modified or
combined with other software or texts, but only on the basis that the resulting
software or text is available to the public under exactly the same licence. As a
result the quantity of software or texts available to the public under the
licence expands.
Elements of a national public
domain (Australia)
What elements determine the existence, scope and
effectiveness of public rights under Australian copyright law? In the tables
following I have itemised about 30 elements of law and practice that are
significant in determining the nature and scope of public rights to works in
Australia, dividing them into six categories:
- Barriers
to copyright subsistence
- Exceptions
to copyright
- Extinguishment
of rights
- Voluntary
public licences (take-up and
limits)
- De
facto public rights
- Effectiveness
supports and
constraints
The
first three categories are mainly to do with formal copyright law, the last
three more to do with practice and institutions. The elements and categories
chosen are unlikely to be of universal validity since they have been selected
for the purpose of explaining one country’s public domain. It would be
difficult to capture something of this complexity in a graphic
‘map’, so I have not attempted to do so.
Following each category is a brief comment summarising to
what extent the elements in that category may be distinctive of
Australia’s public domain (though rarely unique). Statutory references are
to the Australian Copyright Act 1968
unless stated.
The United States position sketched in the following Tables
is only intended to give a very general indication of US law for the purpose of
sketching a comparison. Statutory references are to the United States Copyright
Act.
Scope of / limits on
subsistence of rights
Category
/ Element
|
Australia
|
USA
|
Constitutional
limitations
|
IP clause
untested; no significant freedom of speech limits
|
IP clause
uncertain; 1st amendment freedom of
speech limits possible
|
Reading not
an exclusive right
|
Yes –
enables libraries etc
|
Yes –
enables libraries etc
|
Registration
|
No
registration necessary; no register
|
|
Publication
|
Not
required
|
Not required
(since 1978)
|
Claim/notice
of copyright
|
Not
required
|
Not required
(since 1989; was important to innocent infringement defence)
|
‘Material
form’/fixation required
|
Yes
|
Yes
|
Non-copyrightable
elements
|
‘Idea v
expression’; ‘merger’; facts
|
‘Idea v
expression’; ‘merger’; facts
|
Compilations/databases
|
Telstra
Case - ‘Sweat of the brow’ protection
|
Feist
Case - No ‘sweat of the brow’ protection
|
Exclusion of government
works
|
None; Crown
Copyright
|
Works by the
US govt. (include. legislation, case law) exempt
|
Other exclusions from
©
|
None of
significance
|
None of
significance
|
Moral rights (esp.
integrity)
|
Attribution;
integrity (all works)
|
Attribution;
integrity (works of visual art only) ( s106A)
|
Australia’s public domain gets off to a very
unpromising start. The federal Constitution’s intellectual property clause
has not yet placed any significant limitations on what is capable of being
protected by copyright law (a levy on blank tapes was ruled out), is unlikely to
limit extensions to the term of copyright, and is very unlikely to place any
limitations on copyright in the name of freedom of speech, though none of these
matters are beyond dispute (Bond, 2007).
No registration of works is necessary for protection, so the
default position is that any works created are primarily subject to private
rights rather than public rights. As Berne allows, Australia does have material
form requirements, but broad definitions of what constitutes such form means
there are not significant barriers against copyright protection.
There are no significant restrictions on what types of works
can obtain copyright protection. Works of a ‘legislative, administrative
and legal nature’ have both Crown copyright and prerogative rights.
Australia has implemented rental rights of various types, and moral rights. The
prima facie scope of copyright’s
private rights in Australia is very broad, and works starting life with no
copyright protection are almost non-existent.
Australia’s copyright law protects compilations
(
Desktop Marketing v Telstra [2002] FCAFC
112)
to an
extent that in many respects is equivalent to the protections provided by the
EU’s database Directive, and is in contrast to the much more narrow
approach taken by the
Feist case in the
USA
[7].
Exceptions to
rights
Category
/ Element
|
Australia
|
USA
|
Infringement
quantum
|
‘substantial
part’ (narrow)
|
|
No-fee
‘fair’ public uses
|
Narrow fixed
‘fair dealing’ categories`: (i) reporting news; (ii) criticism and
review; (iii) private study and research; (iv) legal advice
|
Broadly
defined open-ended ‘fair use’ ( s107)
|
Compulsory
licence + statutory fees (I) Entertainment industry
|
Entertainment
industry: recording of musical works; public performance of sound
recordings
|
Entertainment
industry: recording of musical works; public performance of sound recordings;
cable rebroadcasts
|
Compulsory
licence + statutory fees (II) Educational sector
|
Educational
sector uses: (i) print reproductions; (ii) uses of audio-visual works
|
[To check] No
compulsory licences
|
Compulsory
licences (III) Other
|
None
significant
|
None
significant
|
Assuming copyright does subsist in a work, what uses may the
public (or in the case of some compulsory licences, specified sections of the
public) make of that work without infringing?
Little can be copied without infringement:
‘substantial part’ means something close to
‘insubstantial’, and this provides little scope for public rights.
Similarly, Australia does not have any broad ‘fair use’ defence, but
only a narrow range of ‘fair dealing’ defences of relatively fixed
scope: (i) reporting news; (ii) criticism and review; (iii) private study and
research; (iv) legal advice (ss40-43). These have been augmented recently by a
further defence of uses ‘for the purpose of parody or satire’
(s41A).
Australia has compulsory licences for the benefit of
entertainment industries similar to many other countries. It has been argued
that these compulsory licences are the principal reason for the financial
success of the recorded music, radio and cable TV industries of the USA (Lessig,
2004: Ch 4). It also has compulsory licences for educational purposes, both for
reproductions of print works, and for reproductions and in-class uses of
audio-visual works, which are much more extensive than are found in some other
countries. These compulsory licences, particularly those in the education
sector, are a distinctive part of Australian public rights, creating a closed
commons (Drahos, 2006) for benefit of certain classes of users.
Lessig (2006) notes that the ‘permission free’
resources he discusses could cost something, so long as the user had the right
to buy access. In my view this is essential for a full understanding of public
rights, as such compulsory licences may be the largest and most important
limitation on the right of copyright owners to unilaterally determine the
conditions of use of works.
Extinguishment of
rights
Category
/ Element
|
Australia
|
USA
|
Duration of
© term
|
Life of
author + 70 years; no constitutional limit (uncertain – Bond, 2007)
|
Life of
author + 70 years; no constitutional limit
|
Duration of
moral rights
|
Attribution
and integrity rights extinguish with ©
|
N/A; No
integrity right except for visual art
|
‘Public
domain dedications’
|
Uncertain
validity re ©; Uncertain validity re integrity (Bond, 2007)
|
Uncertain
validity, but they are used
|
Due to the Australia-US
Free Trade Agreement [2005] ATS 1 (Part 17 Intellectual Property Rights)
and implementing legislation, Australia has extended the copyright term in much
the same way as the USA to the life of the author plus 70 years. Works will
therefore now enter the Australian public domain (in the narrow sense) at a
slower rate than was previously the case, though no study has yet attempted to
quantify this or estimate its likely effect on Australian cultural
development.
A feature of the Australian situation which contributes
positively to its public rights is that, although Australia has introduced moral
rights, their duration is co-extensive with the economic rights of copyright.
This is particularly important with the right of integrity because, if it was of
longer duration than copyright then anyone modifying a work after it had entered
the public domain (narrow sense) would still have to consider whether they might
infringe the right of integrity.
The other way to ‘extinguish’ copyright in a
work is to somehow put that work into the public domain (in the narrow sense)
before the copyright term has expired. Creative Commons in the USA provides such
a
Public Domain
Dedication ‘licence’, and so apparently has some belief in its
effectiveness, though
Lessig
(2003) queries whether it could be effective under US law. Creative Commons
Australia does not offer a Public Domain Dedication, and its validity is
doubtful under Australian copyright law.
Whether it is possible for an author to renounce the right
of integrity under moral rights law during the term of copyright is also
uncertain, an issue which has implications for an author who wishes to use a
voluntary licence that allows derivatives to be made of their work (Bond, 2007).
Voluntary public licences
(take-up and limits)
Category
/ Element
|
Australia
|
USA
|
Creative
commons licence uptake
|
|
US
(‘unported’) CC licences
|
FOSS licence
uptake
|
GPL dominant;
local validity uncertain
|
GPL
dominant
|
Other
significant licence uptake
|
TVet/AESN
licences in educational sector
|
|
Interoperability
of licences
|
Same problems
as elsewhere
|
Problems
(Lessig 2006)
|
The existence of various licences creating public rights,
for voluntary use by authors within a jurisdiction, has no effect on the public
domain until those licences are used, and is proportional to the extent of their
uptake and the significance of the works in relation to which they are
used.
Estimating the extent of use made by Australian authors, or
in relation to content related to Australia, is complex (Bildstein, 2007). By
mid-2006
Bildstein
identified over 100,000 web pages linked to particular Creative Commons
licences. However, he concluded that “even though Australian versions of
the licences are available, the tendency for people to use the American licences
is still significant.” At the least we can conclude that works under
public licences do now constitute a significant, if modest, part of
Australia’s public domain.
This is an aspect of a more general problem concerning
national public domains. How do you identify the Australian public domain (or
the Norwegian or Scots public domain) and make it findable so that other authors
can make use of its resources?
[8]
De
facto public rights
Category
/ Element
|
Australia
|
USA
|
‘Search
engine commons’
|
‘Search
engine commons’
|
‘Search
engine commons’
|
Other
de facto commons
|
Legislation
and case law an effective commons (but not formally)
|
Legislation
and case law is in public domain ( s105) but not an
effective commons yet
|
These have been mentioned above in relation to the global
dimension of commons. The Australian position has its own special factors in
both cases, while remaining consistent with the overall global
developments.
There is more likelihood of search engine caching practices
being held to be in breach of copyright law in
Australia
[9] than in the USA with its broader
fair use provisions, but there have been no actions in Australia to disturb the
de facto searchable commons.
Australia’s Crown copyright applies to legislation and
case law, and this has been used in the past to enforce monopoly provision of
electronic publication of both (the CLIRS system in the 1980s). However,
Australia also became the first country to have free Internet access to all of
its legislation and case law, nationally from 1996, and from all nine
jurisdictions by 1999.
Effectiveness supports and
constraints
Category
/ Element
|
Australia
|
USA
|
Public
repository of works
|
‘Legal
deposit’ requirement for print works published in Australia; no equivalent
yet for digital or audio-visual works
|
Mandatory
deposit of works published in USA with Library of Congress (since 1978);
includes digital and audio-visual works
|
Scope of TPM
protection - Protects non-© works? - Prevents allowed
uses? - Privacy exemption?
|
[To be
completed]
No privacy exemption.
|
[To be
completed]
Has privacy exemption.
|
Location of
authors (orphan works)
|
None
effective
|
|
Death
register of authors (expiry of © and integrity right)
|
None
|
WATCH is useful, not comprehensive; CC
‘Public domain dedications’
|
Collecting
society restrictions on licensing
|
APRA prevents
members’ uses of CC licences by taking an assignment of rights
|
Equivalent US
collecting societies take only a non-exclusive licence of rights
|
Funding
bodies requiring public free access repositories
|
Australian
Research Council starting to require
|
|
Lessig (2006) says that his aim is to ‘map a strategy
for [the public domain’s] defense’. He talks about ‘crafting
an “effective” public domain – meaning a free space that
functions as a public domain, even though the resources that constitute it are
not properly within the public domain’. He could be talking about this
sixth category of elements that I have listed as contributing to
Australia’s public rights in copyright. I use the same term.
The elements in this category are practices that help or
hinder the operation of the first three categories formal legal rules operating
to the advantage of the public domain, or concern impediments to the operation
of voluntary licences of public rights. They are vital to the effective
operation of public rights. They can be discussed most usefully in conjunction
with discussion of an agenda to make Australia’s public domain more
effective.
An agenda for an effective
public domain in Australia
Once we talk about agendas, values are involved. Julie Cohen
(2006) identifies ‘two distinct visions of the public domain in
copyright’. The ‘conservancy model’, identified with the work
of Litman, Benkler, Boyle, Samuelson, Lessig and others, ‘is concerned
both with ensuring the continued growth of the public domain and with protecting
the existing public domain against incursions’. In contrast, under the
‘cultural stewardship’ model ‘continued ownership of copyright
enables productive management of artistic and cultural subject matter’ and
considers that ‘passage into the public domain should occur only after the
productive life of a cultural good has ended, and is to be mourned’. To
ask what is needed to make Australia’s public domain more effective is the
‘conservancy model’ approach.
What is needed for ‘effective’ public rights,
compared with merely formal public rights, is of course likely to differ between
jurisdictions. For Lessig (2006) one of the key factors was how to make the
‘permission-free zone’ also a ‘lawyer-free zone’. The
rules of ‘fair use’ in the USA, while potentially broad, are
ill-defined and the Supreme Court has refused to let lower Courts develop rules
of automatic application, so ‘the effect is that fair use in practice
becomes the right to hire a lawyer, in contexts in which the defense of fair use
rights is effectively impossible’. Industry practices in requiring
clearances of even the most minor uses of other works in effect nullify the fair
use exception. In Australia this is not one of the issues: most of our
‘fair dealing’ defences are in contrast precise, but it is their
very narrowness and precision that is the problem.
When we look at what would be most useful to make
Australia’s public domain more effective, some of my suggestions are the
same as have been advanced in the USA, and others are quite different. I will
finish with a brief note of my provisional suggestions, each of which would
require a paper in itself to do it justice.
While some of these suggestions are radical, they are all
intended to be possible within the settled constraints of Berne, TRIPS, WCT and
the Australia-US Free Trade Agreement. They are the types of things that a new
reform-minded Australian government might be willing to consider if a
well-argued justification was presented to it.
New legal deposit
requirements for digital and audio-visual works
One requirement for the effective operation of the public
domain at the expiry of copyright in a work is that there be at least one copy
of the work available to the public for subsequent reproduction by anyone. In
Australia this requirement is satisfied for print works by ‘legal
deposit’ requirements in federal law and that of various States, but they
do not apply to audio-visual works (now usually digital) or texts published in
digital form. So we have no guarantee that a copy of a published digital work
will be in a publicly accessible repository when its copyright expires.
In addition, if these digital works are increasingly only
accessible through access control systems or distributed with technological
protection measures (TPMs) , it is also possible that copyright in such works
may expire with no copy which can be accessed
technically being available.
The Australian federal government has started an enquiry
into the extension of legal deposit to audio visual and digital text works, but
its discussion paper does not specifically mention its importance to the public
domain (Australian government, 2007). This provides a good opportunity to
advocate such extension and that it should guarantee, when the copyright term
expires, (i) that a copy is available for anyone to reproduce; and (ii) that
there be no impediment to access because of TPMs, by including both a statutory
right to circumvent, and the deposit of the necessary technical
information.
In the USA, the mandatory deposit with the Library of
Congress of works published in the USA (since 1978) includes digital and
audio-visual works.
Such deposit requirements, because they require
identification of publishers of works, can also assist in identifying copyright
holders of both orphan works (during the term of copyright) and the author whose
death may need to be ascertained (for works out of copyright). But this would
require a better searchable register of publishers and authors that legal
deposit schemes provide at present.
A ‘Right to Adopt
Orphan Works’
‘Orphan works’, where the author cannot be
identified (or can be but cannot be located) so that a license to use a work can
be sought, are a major impediment to all publishing industries. If authors could
be located, and are still alive, then they are likely to be willing to licence
their works for a fee or to do so under some form of public licence (whether
mere permission to use or a Creative Commons or similar licence). Both the
proprietary and public aspects of copyright are harmed by the orphan works
problem.
The US Copyright Office held an enquiry prompted in part by
the extension of the copyright term in the US and concluded (US Copyright
Office 2006) that, provided that a potential user first carried out a
‘reasonably diligent search for the copyright owner’, then they
should have a right to use the work, with attribution, subject only to a
potential liability to pay reasonable compensation for use if the owner did
subsequently emerge. Owners would also lose their right to injunct the
publication of such derivative works (or obtain destruction of copies), provided
the new author had added an original contribution to it.
This is in effect a compulsory licence after reasonable
enquiry, and would be a very desirable reform in Australia as well.
Digging up the UnDead (or
Populating the ‘Dead Authors Club’)
Like orphan works, authors who are not known to be dead or
alive are another category of ‘frozen’ works, where potential public
rights are ineffective because of a lack of information. Here, the main problem
is the practical one of determining whether an author is dead, and if so when
did they die. If it can be ascertained that they have died over 70 years ago,
then the work is available for public use. Otherwise, this is an orphan work
problem, the issue being whether it is a live author who cannot be located or
the legal successors to their copyright interest. In any event, such enquiries
about the deaths of authors are part of the ‘reasonably diligent
search’ problem. A legal solution to the problem of orphan works would
deal with most of this problem as well.
The remaining effectiveness issue would be to improve the
methods of determining whether and when Australian authors have died. There are
no easy and inexpensive ways of doing this at present, particularly when Births
Deaths & Marriages registries operate at state and territory level so there
is no national register (and no national ID system), and when a large percentage
of Australia’s population, as an immigrant nation, have always been born
overseas. There are facilities in the USA like the
WATCH service (Writers, Authors and
Their Copyright Holders), which do provide publisher contact details for the
representatives of some live or recently dead authors. They have some coverage
of Australian authors, but searches on some well-known Australian authors
produce no result. The
Australian Society of
Authors now has an ‘Author Search’ button on its website (a
subject of previous discussion with the Unlocking IP project) but it says
‘coming soon’.
Encouraging author associations, depository libraries and
governments to collaborate to provide a more comprehensive means of determining
the status and representatives of both living and dead authors would be a
significant step toward making Australia’s public domain – and its
proprietary domain – more effective.
Compulsory licence of
government works?
There are no consistent policies governing the re-use of
government materials across Australia, nothing equivalent to the EU’s
‘re-use’ Directive or the general availability of US government
works for re-use.
The Copyright Law Review Committee recommended reforms to
Crown copyright (CLRC, 2005) but the federal government has not yet acted upon
them. However, the CLRC’s recommendations were quite limited, being
primarily to replace Crown copyright with a clarified position of the rights of
the Crown as employer over works made in the course of Crown employees duties,
plus the abolition of copyright in legislation, case law and similar works. No
general licensing scheme for government works was proposed.
There are some significant developments at State level in
Australia. For example the Queensland Spatial Information Council has
recommended that Queensland state government agencies move to an information
licensing framework for government information, based on Creative Commons (CC)
licences, where no issues of privacy, confidentiality or other legal or policy
constraints apply. Pilot agencies were identified for implementation of the
Government Information Licensing Framework (GILF). A toolkit has been developed
for pilot projects, and agencies identified to carry them out in the next stage
(Queensland Government, 2007).
The most practical way forward for the development of a
government public domain in Australia is not to seek a legislative requirement
of government licensing, but rather to support development of broad-based
projects like the one in Queensland, to first demonstrate the benefits that can
be obtained.
Public rights in
publicly-funded works
Free access to publicly-funded research outputs is an
important part of any broad notion of public rights in works.
The Australian Research Council’s current policy is
that
The funding rules for schemes under the NCGP are being
amended to encourage researchers to consider the benefits of depositing their
data and any publications arising from research projects in appropriate
repositories wherever such a repository is available to the researcher(s).
The rules for its funding schemes (ARC 2007) now contain
the statement that
The ARC therefore encourages
researchers to consider the benefits of depositing their data and any
publications arising from a research project in an appropriate subject and/or
institutional repository wherever such a repository is available to the
researcher(s). If a researcher is not intending to deposit the data from a
project in a repository within a six-month period, he/she should include the
reasons in the project’s Final Report. Any research outputs that have been
or will be deposited in appropriate repositories should be identified in the
Final Report.
Given that Final Reports to the ARC may affect eligibility
for future grants, there is now starting to be a requirement that Australian
academic researchers provide free access to their research outputs, and to
report this to the ARC
[10]. This will also
encourage many journals in which academics are likely to publish to make their
content available for free access so that they can advise their authors that
publication with them will fully discharge their obligations to the ARC. With
research outputs no time frame is suggested by the ARC, so an ARC-compliant
journal could still publish for free on the Internet one or two issues behind
print publication if they wish.
To create a vibrant domain of free access for Australian
Research, what needs to be done at present is to capitalise on and reinforce
this ARC requirement
[11], and possibly to
strengthen it if authors are not observing it or publishers trying to frustrate
it.
‘Some rights
reserved’ from collecting societies
There is evidence that the membership conditions of some
Australian collecting societies make it very difficult for their members to
licence any of their works under Creative Commons licences or other licences
with public rights. For example, the Australian Performing Right Association
(APRA) requires its members to assign all present and future copyrights to it,
effectively precluding their use of any licences to create limited public rights
(eg for non-commercial use) (see Creative Commons International, 2005,
2006).
Consideration needs to be given to a right to opt-out from
collecting society coverage for (a) some works or (b) some uses.
Voluntary licence
interoperability
Australia has its own separate voluntary licensing regimes,
particularly the Creative Commons Australia licences and the TVet/AESharNet
licensing suites. The problems of interoperability identified in the US need to
be addressed in Australia as well.
Preventing voluntary
licences becoming compulsory
It is becoming increasingly common for those who wish to use
some type of facility to provide their own content to the public are being
required by the operators of those facilities to adopt a particular version of a
public rights licence in order to use the facility. If you want to publish in
Wikipedia you must use one particular licence. If you want to publish in
Jurispedia you must use a different licence, and the two are incompatible so it
is impossible to copy content from one to the other even though both allow
re-use of their content. While use of a particular licence is the basis of the
success of viral licensing, we need to do what we can to ensure that
requirements to adopt particular licences are not creating harmful side-effects,
such as the unwitting loss of control of private photographs to commercial
re-use by publishing them in photo respositories.
The ‘involuntary’ creation of public rights by
new forms of ‘compulsory licences’ created by social practices
should be avoided if possible.
A way forward?
This constellation of possible enhancements to public rights
in Australian copyright law might best be taken forward by a law reform review
that took Australia’s public domain (in the broad sense) as its focus,
rather than as an incidental aspect of other enquiries. The Copyright Law Review
Committee is now defunct, and the Liberal government has not acted on any of its
last reports, including those relevant to the public domain on Crown copyright
(CLRC, 2005), and on contracts and copyright (CLRC, 2002). The appropriate body
to undertake a comprehensive review of Australia’s public domain is the
Australian Law Reform Commission, now in the final stages of an equally large
reference on privacy law. A new federal government might find a reference to the
ALRC a good way to set a new and well-considered agenda for Australian copyright
law.
References
ARC, 2007 - Australian
Research Council ‘Linkage
Infrastructure, Equipment and Facilities - Funding Rules for funding commencing
in 2008’, 2007
Australian Government (2007) – Department of
Communications, Information Technology and the Arts 2007
Discussion Paper on the Extension of Legal
Deposit, November 2007, available at
<http://www.ag.gov.au/www/agd/agd.nsf/Page/RWP6C58A15A095D9476CA25737200035E3E
>
Bainton (2007) – Bainton, T “The public domain
and the librarian” in Waeld & MacQueen (2007)
Berne Convention (1886) –
Berne Convention for the Protection of
Literary and Artistic Works, 1886, as revised [1978] ATS 5
Bildstein (2007) - Bildstein, B "Finding and Quantifying
Australia’s Online Commons", (2007) 4:1 SCRIPT-ed 8 at
<http://www.law.ed.ac.uk/ahrc/script-ed/vol4-1/bildstein.asp>
Bond (2007) – Bond, C unpublished draft doctoral
thesis (part of Unlocking IP project), University of New South Wales
Boyle (2003) - Boyle, J (Ed)
The Public Domain, special issue of
Law and Contemporary Problems,
66:1&2 Winter/Spring 2003
CLRC (2005) - Copyright Law Review Committee
Crown Copyright at
<http://www.austlii.edu.au/au/other/clrc/18.pdf>
CLRC (2002) - Copyright Law Review Committee
Copyright and Contract at
<http://www.austlii.edu.au/au/other/clrc/2/>
Creative Commons International (2005)
Submission to ACCC concerning APRA at
<http://www.law.qut.edu.au/files/ACCCFinal31.pdf>
Creative Commons International (2006)
Further Submission to ACCC concerning
APRA at http://www.law.qut.edu.au/files/ACCCFollowupltr31.pdf>
Greenleaf (2003) - Greenleaf G ‘IP, Phone Home:
Privacy as Part of Copyright's Digital Commons in Hong Kong and Australian
law’ in Lessig, L (Editor) Hochelaga
Lectures 2002: The Innovation Commons Sweet & Maxwell Asia, Hong
Kong, 2003
Greenleaf (2007) - Greenleaf, G ‘Creating commons by
friendly appropriation’ (2007)
4:1 SCRIPT-ed
117
Guibault & Hugenholtz (2006) - Guibault, L and
Hugenholtz, RB (Eds) The Future of the Public
Domain, Kluwer, 2006
Lessig (2004) – Lessig,
L Free
Culture, Penguin, 2004
Lessig (2006) – Lessig, L ‘Re-crafting a public
domain’ Yale Journal of Law and the
Humanities, Special Issue 2006
Queensland Government (2007) -
Government Information and Open Content
Licensing: An Access and Use Strategy (GILF Stage 2 Report), 2007 at
<http://www.qsic.qld.gov.au/QSIC/QSIC.nsf/navigators/Key%20Projects>
Samuelson (2003) – Samuelson, P ‘Mapping the
digital public domain: Threats and opportunities’ in Boyle (2003)
Samuelson (2006) – Samuelson, P ‘Challenges in
mapping the public domain’ in Guibault & Hugenholtz (2006)
Waeld & MacQueen (2007) - Waelde C and MacQueen H (Eds)
Intellectual Property – The Many Faces
of the Public Domain, Edward Elgar, Cheltenham, 2007
US Copyright Office (2006) – United States Copyright
Office Report on Orphan Works,
2006
US Copyright Office (2007) – ‘Copyright
Registration’ at
<http://www.copyright.gov/register/>
Wikipedia (2007) – ‘List of parties to
international copyright treaties’ at
<http://en.wikipedia.org/wiki/List_of_countries_party_to_the_Berne_Convention>