Commons-ism in One Country? – National and International Dimensions of Copyright’s Public Domain
Introduction
Terminology
Avoiding a misleading dichotomy
A working notion of (effective) public rights
Elements of the global public domain
Elements determined by the Berne Convention and TRIPS
De facto global commons
Elements of a national public domain (Australia)
Scope of / limits on subsistence of rights
Exceptions to rights
Extinguishment of rights
Voluntary public licences (take-up and limits)
De facto public rights
Effectiveness supports and constraints
An agenda for an effective public domain in Australia
New legal deposit requirements for digital and audio-visual works
A ‘Right to Adopt Orphan Works’
Digging up the UnDead (or Populating the ‘Dead Authors Club’)
Compulsory licence of government works?
Public rights in publicly-funded works
‘Some rights reserved’ from collecting societies
Voluntary licence interoperability
Preventing voluntary licences becoming compulsory
A way forward?
References
Graham Greenleaf Commons-ism in One Country? 16

Commons-ism in One Country? – National and International Dimensions of Copyright’s Public Domain

Graham Greenleaf[*]
Draft paper - 21 November 2007 – Please do not cite without permission.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:
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
No registration necessary (since 1978); voluntary US Copyright Office 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
Australian CC licences (%); US CC licences (%) (Bildstein, 2007)
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
US Copyright Office Register can be used; WATCH is useful, not comprehensive
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, 200X – Australian Research Council ‘Australian Research Council Statement of Intent’, 200X, at http://www.arc.gov.au/rtf/ARC_Statement_Intent.rtf
ARC, 2007 - Australian Research CouncilLinkage 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
IIPA (2007) - International Intellectual Property Alliance (IIPA) - Scorecard of WIPO Internet Treaties, as at May 8, 2007, at http://www.iipa.com/pdf/WIPOtreatiesWCTWPPTRatificationAccessionStatusScorecardCHART050807.pdf
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>

[*] Professor of Law, University of New South Wales, Visiting Fellow, AHRC Centre for Intellectual Property and Technology Law, University of Edinburgh School of Law, 2007. This paper is being presented at the AHRC Research Centre for Studies in IP and IT Law at the University of Edinburgh, 16 November 2007, and at the Norwegian Society for Computers & the Law, Oslo, 21 November 2007. It was prepared as part of research under ‘Unlocking IP’, an Australian Research Council Linkage Project.
[1] As examples of works in which copyright has expired by effluxion of time (or by some effective ‘gifting’ to the public), and in which the only copy is not effectively locked in a TPM.
[2] For a work to exist at the purely private end of the spectrum, it would have to be effectively locked within a technological protection measure (TPM) so as to effectively nullify any fair use rights which might otherwise apply (so any (public rights would be merely formal but ineffective). The jurisdiction concerned would also have to have no legislative exceptions under which TPMs could be overridden (for example by public archives), otherwise we would have to say that some minimal public rights still exist.
[3] I use the expression ‘public rights’ without intending that too much be read into ‘rights’ as distinct from ‘liberties’. Such distinctions are worth making but not essential to this argument.
[4] Over 75% of countries by 2005, nearly 150 (Wikipedia, 2007). It does not seem that the WIPO Copyright Treaty (WCT) is so likely to be adopted universally: as of May 2007 only 64 countries had ratified the WCT (IIPA, 2007), and it closes in December 2007.
[5] The US Library of Congress maintains a voluntary registration system for most types of works. ‘Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin’ (US Copyright Office (2007) ‘Copyright Registration’ and ‘Copyright Office Basics’.
[6] Lessig (2006) notes that copyright laws had little effect on the actions of ordinary individuals’ use of copyright works, but he is not referring specifically to privacy considerations
[7] Feist Publications Inc v Rural Telephone Service Co Inc 499 US 340 (1991)
[8] This is one aspect of the ‘Unlocking IP’ project. Ben Bildstein is the main postgraduate researcher on this part of the project: see http://www.unlockingip.org for some early development work.
[9] “For example, there is as yet little judicial interpretation of the Australian exception for a ‘a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication’ (s43A Copyright Act 1968), and it is unlikely or at least uncertain that this would provide any protection for the caching practices of search engines, though it may well be sufficient to protect the creation of the concordance necessary for a search engine to operate. The current ‘fair dealing’ provisions in the Australian legislation would seem unlikely to provide any assistance to search engines. There is also little prospect that the concept of implied licences will be interpreted broadly enough, at least in jurisdictions like Australia (Trumpet Software v Ozemail (1996)), to give the operators of search engines the breadth of licence they would need. Nor would the mere fact that these practices have persisted for the best part of a decade, in itself, do so.”: Greenleaf, 2007
[10] With research data the requirement is even stronger, to make it publicly accessible within six months of publication or explain why not.
[11] For example, in the discipline of law, researchers including the author have obtained an ARC LIEF grant for 2008 to build a free access Australian Legal Scholarship Library on AustLII. The ARC requirements will be drawn to the attention of all academic law journals and all Law Deans in Australia through the Council of Law Deans (CALD).