Creative Commons Roadshow 2010 Roadshow Day, Date Venue and address Be social—Follow @ccAustralia and #CCRdShow10 on Twitter
Introduction and overview Professor Brian Fitzgerald Co-project Lead, ccAustralia
Creative Commons is… About copyright A copyright licence Cannot exist without copyright
Creative Commons is… A new way of managing copyright “Emblematic” of a freedom to share our own copyright (Why share? – leads to better outcomes/innovation? – other motives?)
Creative Commons is not… Anti-copyright A copyright abolitionist movement
Background Based on the free software and open source licences like GNU GPL and BSD GPL – Richard Stallman – share source code human readable If you use my code and distribute it – you must share improvements with the recipient
How does CC work? CC is a permission to use (reproduce, distribute and publicly perform) copyright material – literary, dramatic, musical, artistic works, films, sound recordings, broadcasts and published editions On certain conditions
Crown Copyright Special category of copyright – government owned – CC can be applied to Crown copyright Application CC to Crown Copyright – to facilitate access to public sector information (PSI)
Key Terms Mandatory - Attribution (BY) Optional – Noncommercial (NC),No Derivatives (ND), Share Alike (SA) ND and SA cannot be used together
Baseline Terms Attribution – Name of author and other Attribution parties, Copyright Notice, Title of the work and Licence URL, Identify changes made (where applicable) No suggestion of endorsement Keep notices that refer to Licence or Disclaimers
Baseline Terms No terms limit permitted use of material and No TPM applied Need Permission for Acts Beyond the Licence Given Licence Specific Restrictions – NC, ND, SA Fair dealing still exists Moral rights still exist
Licences BY BY-NC BY-SA BY-ND BY-NC-SA BY-NC-ND
Licences – v3.0 Australia Version 3.0 Australia – released June 2010 Simpler and plain language drafting style
Licences – Structure Clause 1 – Definitions Clause 2 – Fair Dealing and Other Use Rights Remain Clause 3 – Grants – can reproduce, distribute, publicly perform Clause 4 – Restrictions – on distribute and publicly perform
Licences – Structure Clause 5 and 6 – Disclaimer and Limit of Liability Clause 7 – Termination Clause 8 – Rights Retained Clause 9 – Direct Licence Clause 10 – Severability
Licences – Structure Clause 11 – Waiver and Consents Clause 12 – Entire Agreement Clause 13 – Governing Law
Licences – Restrictions No limiting the permissions granted under the licence including No TPM/DRM You must Attribute Manner reasonable to the medium No suggestion of endorsement
Licences – Restrictions You must give notices Licence Specific – Share Alike (same licence); or Noncommercial; or No Derivative Works.
Licences – No TPMs Clause 4A(f) Attribution 3.0 Australia – When You Distribute or publicly perform the Work, You must not impose any technological measures on it that restrict the ability of a recipient of the Work from You to exercise the rights granted to them by this Licence.
Clause 4B(c) Attribution-Share Alike 3.0 Australia – When You Distribute or publicly perform a Derivative Work You must not impose any technological measures on it that restrict the ability of a recipient of the Derivative Work from You to exercise the rights granted to them by the Applicable Licence.
Licences – Moral Rights
Clause 4E Attribution-Share Alike 3.0 Australia – Moral rights remain unaffected to the extent they are recognised and nonwaivable at law. In this clause 4E, “moral rights" means the personal rights granted by law to the Original Author of a copyright work.
Licences – Moral Rights
For example, Part IX of the Copyright Act 1968 (Cth) grants authors the right of integrity of authorship, the right of attribution of authorship, and the right not to have authorship falsely attributed.
Noncommercial Clause 1 Attribution-Noncommercial-Share Alike 3.0 Australia – “Commercial” means primarily intended for or directed towards commercial advantage or private monetary compensation.
Noncommercial The exchange of the Work for other copyright works by means of digital file-sharing or otherwise shall not be considered to be Commercial, provided there is no payment of any monetary compensation in connection with the exchange of copyright works.
Noncommercial Study CC has released guidelines and done a recent study on the meaning of this term. There are some clear cases of what is non commercial – private and domestic use – and some clear cases of commercial use – corporations using the material to gain revenue.
Noncommercial Study What about an individual who runs a website and has advertisements on it to defray the costs? The CC study suggests that “… creators and users generally consider uses that earn users money or involve online advertising to be commercial ...”
Noncommercial Study Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use, http://wiki.creativecommons.org/Defining_Noncommercial
Adam Curry vAudax(2006) Photos from Flickr published in a magazine sold commercially – Netherlands Court said no permission and no licence to use the photos - as this was commercial use
No Derivative Works Clause 1 Attribution-No Derivative Works 3.0 Australia – “Derivative Work" means material in any form that is created by editing, modifying or adapting the Work, a substantial part of the Work, or the Work and other pre-existing works.
No Derivative Works Derivative Works may, for example, include a translation, adaptation, musical arrangement, dramatisation, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be transformed or adapted…
No Derivative Works …except that a Collection will not be considered a Derivative Work for the purpose of this Licence.
No Derivative Works For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image (“synching") will be considered a Derivative Work for the purpose of this Licence.
Share Alike Clause 4B(a) Attribution-Share Alike 3.0 Australia – You may only Distribute or publicly perform a Derivative Work if You apply one of the following licences to it: i) this Licence; ii) a later version of this Licence with the same Licence Elements (such as Attribution-ShareAlike 4.0 Australia); or
Share Alike iii) a Creative Commons Unported licence or a licence from another jurisdiction (either this or a later version) that has the same Licence Elements; or iv) a Creative Commons Compatible Licence. (* note this last option is not available in CC BY NC SA 3.0 Australia)
Legal Validity of LicencesJacobsen vKatzer 535 F.3d 1373 (FedCir 2008) “Appellees Matthew Katzer and Kamind Associates, Inc. (collectively ‘‘Kat- zer/Kamind’’) develop commercial software products for the model train industry and hobbyists. Jacobsen accused Katzer/Kamind of copying certain materials from Jacobsen’s website and incorporating them into one of Katzer/Kamind’s software packages without following the terms of the Artistic License. Jacobsen brought an action for copyright infringement and moved for a preliminary injunction. Jacobsen manages an open source software group called Java Model Railroad Interface (‘‘JMRI’’). Through the collective work of many participants, JMRI created a computer programming application called DecoderPro, which allows model railroad enthusiasts to use their computers to program the decoder chips that control model trains. DecoderPro files are available for download and use by the public free of charge from an open source incubator website called SourceForge; Jacobsen maintains the JMRI site on SourceForge. The downloadable files contain copyright notices and refer the user to a ‘‘COPY- ING’’ file, which clearly sets forth the terms of the Artistic License. Katzer/Kamind offers a competing software product, Decoder Commander, which is also used to program decoder chips. During development of Decoder Com mander, one of Katzer/Kamind’s predecessors or employees is alleged to have downloaded the decoder definition files from DecoderPro and used portions of these files as part of the Decoder Commander software. The Decoder Commander software files that used DecoderPro definition files did not comply with the terms of the Artistic License. Specifically, the Decoder Commander software did not include (1) the author’ names, (2) JMRI copyright notices, (3) references to the COPYING file, (4) an identification of SourceForge or JMRI as the original source of the definition files, and (5) a description of how the files or computer code had been changed from the original source code. The Decoder Commander software also changed various computer file names of DecoderPro files without providing a reference to the original JMRI files or information on where to get the Standard Version.”
Legal Validity of LicencesJacobsen vKatzer 535 F.3d 1373 (FedCir 2008) ‘”Public licenses, often referred to as open source licenses, are used by artists, authors, educators, software developers, and scientists who wish to create collaborative projects and to dedicate certain works to the public. Several types of public licenses have been designed to provide creators of copyrighted materials a means to protect and control their copyrights. Creative Commons, one of the amici curiae, provides free copyright licenses to allow parties to dedicate their works to the public or to license certain uses of their works while keeping some rights reserved.
Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago. For example, the Massachusetts Institute of Technology (MIT) uses a Creative Commons public license for an OpenCourseWare project that licenses all 1800 MIT courses. Other public licenses support the GNU/Linux operating system, the Perl programming language, the Apache web server programs, the Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia. Creative Commons notes that, by some estimates, there are close to 100,000,000 works licensed under various Creative Commons licenses. The Wikimedia Foundation, another of the amici curiae, estimates that the Wikipedia website has more than 75,000 active contributors working on some 9,000,000 articles in more than 250 languages.”
Legal Validity of LicencesJacobsen vKatzer 535 F.3d 1373 (FedCir 2008) “Open Source software projects invite computer programmers from around the world to view software code and make changes and improvements to it. Through such collaboration, software programs can often be written and debugged faster and at lower cost than if the copyright holder were required to do all of the work independently. In exchange and in consideration for this collaborative work, the copyright holder permits users to copy, modify and distribute the software code subject to conditions that serve to protect downstream users and to keep the code accessible. By requiring that users copy and restate the license and attribution information, a copyright holder can ensure that recipients of the redistributed computer code know the identity of the owner as well as the scope of the license granted by the original owner. The Artistic License in this case also requires that changes to the computer code be tracked so that downstream users know what part of the computer code is the original code created by the copyright holder and what part has been newly added or altered by another collaborator.”
Legal Validity of LicencesJacobsen vKatzer 535 F.3d 1373 (FedCir 2008) “Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public licenses, even where profit is not immediate. See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1200 (11th Cir. 2001) (Program creator derived value from the distribution [under a public license] because he was able to improve his Software based on suggestions sent by end-users. . . . It is logical that as the Software improved, more end-users used his Software, thereby increasing [the programmers] recognition in his profession and the likelihood that the Software would be improved even further).”
Legal Validity of LicencesJacobsen vKatzer 535 F.3d 1373 (FedCir 2008) “The District Court interpreted the Artistic License to permit a user to ‘‘modify the material in any way’’ and did not find that any of the ‘‘provided that’’ limitations in the Artistic License served to limit this grant. The District Court’s interpretation of the conditions of the Artistic License does not credit the explicit restrictions in the license that govern a downloader’s right to modify and distribute the copyrighted work. The copyright holder here expressly stated the terms upon which the right to modify and distribute the material depended and invited direct contact if a downloader wished to negotiate other terms. These restrictions were both clear and necessary to accomplish the objectives of the open source licensing collaboration, including economic benefit. Moreover, the District Court did not address the other restrictions of the license, such as the requirement that all modification from the original be clearly shown with a new name and a separate page for any such modification that shows how it differs from the original. Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir.1976), the ‘‘unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright.’’ Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and ex- planation of changes, rather than as a dollar denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief.”
ERMI Provisions regarding Enforcement Copyright Act 1968 (Cth), s 116B – 116D 116 B Removal or alteration of electronic rights management information (1) This section applies if: (a) either: (i) a person removes, from a copy of a work or other subject‑matter in which copyright subsists, any electronic rights management information that relates to the work or other subject‑matter; or (ii) a person alters any electronic rights management information that relates to a work or other subject‑matter in which copyright subsists; and (b) the person does so without the permission of the owner or exclusive licensee of the copyright; and (c) the person knew, or ought reasonably to have known, that the removal or alteration would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject‑matter. (2) If this section applies, the owner or exclusive licensee of the copyright may bring an action against the person. (3) In an action under subsection (2), it must be presumed that the defendant knew, or ought reasonably to have known, that the removal or alteration to which the action relates would have the effect referred to in paragraph (1)(c) unless the defendant proves otherwise.
v3.0 Australia Changes Look and feel has changed – follows UK and NZ – align with Unported/Generic licence No endorsement clause inserted – confirms general law Moral rights – wording changed – no substantive change BY-SA – compatible licence option added Further clarification – that no sub-licensing allowed
v3.0 Australia – No Endorsement Clause 4B(f) Attribution 3.0 Australia – No endorsement clause – For the avoidance of doubt, You may only use the credit required by this clause 4B for the purpose of attribution in the manner set out above. By exercising Your rights under this Licence, You must not assert or imply:
v3.0 Australia – No Endorsement any connection between the Original Author, Licensor or any other Attribution Party and You or Your use of the Work; or sponsorship or endorsement by the Original Author, Licensor or any other Attribution Party of You or Your use of the Work,
v3.0 Australia – No Endorsement without their separate, express prior written permission.
v3.0 Australia - Moral Rights Clause 4C Attribution 3.0 Australia – Moral rights remain unaffected to the extent they are recognised and nonwaivable at law. In this clause 4C, "moral rights" means the personal rights granted by law to the Original Author of a copyright work.
v3.0 Australia - Moral Rights For example, Part IX of the Copyright Act 1968 (Cth) grants authors the right of integrity of authorship, the right of attribution of authorship, and the right not to have authorship falsely attributed.
v3.0 Australia – BY-SA compatible Clause 4B(a) Attribution-Share Alike 3.0 Australia – You may only Distribute or publicly perform a Derivative Work if You apply one of the following licences to it: i) this Licence; ii) a later version of this Licence with the same Licence Elements (such as Attribution-ShareAlike 4.0 Australia); or
v3.0 Australia – BY-SA compatible ii) a Creative Commons Unported licence or a licence from another jurisdiction (either this or a later version) that has the same Licence Elements (such as Attribution-ShareAlike 3.0 Netherlands); or iv) a Creative Commons Compatible Licence. See http://creativecommons.org/compatiblelicenses
v3.0 Australia – No sublicense Clause 4A(d) Attribution 3.0 Australia licence – You are not granted the right to sublicense the Work. The rights of recipients of the Work from You are governed by clause 9.
v3.0 Australia – No sublicense Clause 9 Attribution 3.0 Australia – Each time You Distribute or publicly perform the Work, a Derivative Work or a Collection the Licensor offers the recipient a licence to the Work on the same terms as are granted to You under this Licence.
v3.0 Australia – Disclaimers Clause 5(a) Attribution 3.0 Australia – Representations, Warranties and Disclaimer – Except as expressly stated in this Licence or otherwise agreed to by the parties in writing, and to the full extent permitted by applicable law, the Licensor offers the Work "as-is" and makes no representations, warranties or conditions of any kind concerning the Work, express, implied, statutory or otherwise.
v3.0 Australia – Disclaimers the contents or accuracy of the Work; title, merchantability, or fitness for a particular purpose; non-infringement; the absence of latent or other defects; or the presence or absence of errors, whether or not discoverable.
v3.0 Australia – Disclaimers Clause 5(b) Attribution 3.0 Australia – Representations, Warranties and Disclaimer – The Trade Practices Act 1974 (Cth), and the corresponding State and Territory fair trading legislation, imply certain warranties and conditions in certain circumstances, such as the right to supply or fitness for purpose of goods or services supplied to a consumer. Clause 5(a) cannot and is not intended to exclude, restrict or modify these warranties.
v3.0 Australia – Disclaimers Clause 6(a) Attribution 3.0 Australia – Limit of Liability – To the full extent permitted by applicable law, and except for any liability arising from contrary agreement, in no event will the Licensor be liable to You on any legal basis (including without limitation, negligence) for any loss or damage whatsoever, including (without limitation):
v3.0 Australia – Disclaimers loss of production or operation time, loss, damage or corruption of data or records; or loss of anticipated savings, opportunity, revenue, profit or goodwill, or other economic loss; or any special, incidental, consequential, punitive or exemplary damages arising out of or in connection with this Licence or the use of the Work, even if the Licensor has been advised of the possibility of such damages.
v3.0 Australia – Disclaimers Clause 6(b) Attribution 3.0 Australia – Limit of Liability – The Trade Practices Act 1974 (Cth), and the corresponding State and Territory fair trading legislation, restrict the limitation of liability in certain circumstances, such as a contract for the supply of goods or services of a kind ordinarily acquired for personal, domestic, or household use …
v3.0 Australia – Disclaimers Clause 6(c) Attribution 3.0 Australia – Limit of Liability – … Clauses 6(a) and 6(b) cannot and are not intended to apply in circumstances where it is prohibited by law.
Who uses CC? Many different people See search.creativecommons.org Publicly funded organisations in recent times On his first day in office in 2009 President Obama applied a CC licence to his website, www.whitehouse.gov
Permission for Copyright Only Do other rights need to be cleared? Recent issue over photos See Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009)
Key Criticisms Vague nature of Non Commercial term Licence lasts for the term of the copyright? Licensor may change mind? Take it down – with what effect? Can it be revoked by licensor? In practice – even if possible – not allowable where there is an estoppel? Is enough guidance given to users of the licence? Education and support services?
Creative Commons case studies Elliott Bledsoe Project Officer, ccAustralia
Generic 2.0It’s not easy being green by Daveybot, http://flickr.com/photos/davemorris/4202299
Generic 2.0hugs by Julie McLeod, http://www.flickr.com/photos/29553188@N07/3573969837
Generic 2.0Pink by Zach Klein, http://flickr.com/photos/zachklein/54143396
Generic 2.0Cory Doctorow by Joi, http://flickr.com/photos/joi/2196901054
CORY DOCTOROW Generic 2.0Cory Doctorow by Joi, http://flickr.com/photos/joi/2196901054
Generic 2.0Down and Out in the Magic Kingdom (cover) by Cory Doctorow, http://craphound.com/down
CC BY-NC-SA Generic 2.0Down and Out in the Magic Kingdom (cover) by Cory Doctorow, http://craphound.com/down
Generic 2.0Little Brother (cover) by Cory Doctorow, http://craphound.com/littlebrother
Most people who download the book don't end up buying it, but they wouldn’t have bought it in any event… Cory Doctorow
A tiny minority of downloaders treat the free e-book as a substitute for the printed book−those are the lost sales. Cory Doctorow
…a larger minority treat thee-book as an enticement to buy the printed book. They’re gained sales Cory Doctorow
30 000 downloads Generic 2.0Down and Out in the Magic Kingdom (cover) by Cory Doctorow, http://craphound.com/down
30 000 downloads 24 hours Generic 2.0Down and Out in the Magic Kingdom (cover) by Cory Doctorow, http://craphound.com/down
30 000 downloads 24 hours 6 print runs Generic 2.0Down and Out in the Magic Kingdom (cover) by Cory Doctorow, http://craphound.com/down
30 000 downloads 24 hours 6 print runs 20+ formats Generic 2.0Down and Out in the Magic Kingdom (cover) by Cory Doctorow, http://craphound.com/down
30 000 downloads 24 hours 6 print runs 20+ formats 8 translations Generic 2.0Down and Out in the Magic Kingdom (cover) by Cory Doctorow, http://craphound.com/down
Generic 2.0IBM Think D100 Test by Howdy, I'm H. Michael Karshis, http://flickr.com/photos/hmk/2741404653
CAFUNÉ Generic 2.0IBM Think D100 Test by Howdy, I'm H. Michael Karshis, http://flickr.com/photos/hmk/2741404653
BRUNO VIANNA Generic 2.0IBM Think D100 Test by Howdy, I'm H. Michael Karshis, http://flickr.com/photos/hmk/2741404653
CC BY-NC-SA Generic 2.0IBM Think D100 Test by Howdy, I'm H. Michael Karshis, http://flickr.com/photos/hmk/2741404653
online and theatrical release Generic 2.0IBM Think D100 Test by Howdy, I'm H. Michael Karshis, http://flickr.com/photos/hmk/2741404653
online and theatrical release alternative endings Generic 2.0IBM Think D100 Test by Howdy, I'm H. Michael Karshis, http://flickr.com/photos/hmk/2741404653
online and theatrical release alternative endings 20 most-watched films Generic 2.0IBM Think D100 Test by Howdy, I'm H. Michael Karshis, http://flickr.com/photos/hmk/2741404653
online and theatrical release alternative endings 20 most-watched films returned to cinemas Generic 2.0IBM Think D100 Test by Howdy, I'm H. Michael Karshis, http://flickr.com/photos/hmk/2741404653
the tide of ‘big screen movie-and-popcorn’ enthusiasts did not exchange the box office lines for their computers Bruno Vianna
if there were no demand, the film would not have returned to the big screen Julia Levy, Group Estacão
$23 000 in donations $19 000 in merchandise $3000 in theatrical revenue
$23 000 in donations $19 000 in merchandise $3000 in theatrical revenue $3000 in DVD sales
$23 000 in donations $19 000 in merchandise $3000 in theatrical revenue $3000 in DVD sales $3000 in TV revenue
$23 000 in donations $19 000 in merchandise $3000 in theatrical revenue $3000 in DVD sales $3000 in TV revenue $4000 in other fees
$23 000 in donations $19 000 in merchandise $3000 in theatrical revenue $3000 in DVD sales $3000 in TV revenue $4000 in other fees
$23 000 in donations $19 000 in merchandise $3000 in theatrical revenue $3000 in DVD sales $3000 in TV revenue $4000 in other fees $50 000
Generic 2.0Trent Reznor en vivo desde el Poliedroby Edvill, http://flickr.com/photos/edvill/3129811144
TRENT REZNOR Generic 2.0Trent Reznor en vivo desde el Poliedroby Edvill, http://flickr.com/photos/edvill/3129811144
NINE INCH NAILS Generic 2.0Trent Reznor en vivo desde el Poliedroby Edvill, http://flickr.com/photos/edvill/3129811144
United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
GHOSTS I-IV United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
CC BY-NC-SA United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
9 tracks free download United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
9 tracks free download 36 CC-licensed tracks United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
9 tracks free download 36 CC-licensed tracks 5 payment options United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
9 tracks free download 36 CC-licensed tracks 5 payment options $300 ultra-deluxe pack United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
9 tracks free download 36 CC-licensed tracks 5 payment options $300 ultra-deluxe pack 2500 units only United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
9 tracks free download 36 CC-licensed tracks 5 payment options $300 ultra-deluxe pack 2500 units only sold out in 30 hours $750 000 United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
9 tracks free download 36 CC-licensed tracks 5 payment options $300 ultra-deluxe pack 2500 units only sold out in 30 hours 800 000+ transactions United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
9 tracks free download 36 CC-licensed tracks 5 payment options $300 ultra-deluxe pack 2500 units only sold out in 30 hours 800 000+ transactions $1.6 million+ 2 months United States 2.0Ghosts I-Iv (cover) by Nine Inch Nails, http://ghosts.nin.com
United States 2.0The Slip (cover) by Nine Inch Nails, http://theslip.nin.com
THE SLIP United States 2.0The Slip (cover) by Nine Inch Nails, http://theslip.nin.com
CC BY-NC-SA United States 2.0The Slip (cover) by Nine Inch Nails, http://theslip.nin.com
1.4 million downloads United States 2.0The Slip (cover) by Nine Inch Nails, http://theslip.nin.com
1.4 million downloads 2 months United States 2.0The Slip (cover) by Nine Inch Nails, http://theslip.nin.com
CC Music Remix – My Life Originally written by Colin Mutchler – posted to Opsound under CC By-SA. My life by Colin Mutchlerhttp://ccmixter.org/files/commonsplice/166
CC Music Remix – My Life A month later a violinist name Cora Beth Bridges added a violin track, calling the new work My Life Changed. One of the first instances of CC facilitating unsolicited collaboration, laying the ground work for the amazing remix culture we now see. My life Changed by Cora Beth Bridges http://www.activefreemedia.com/gallery/music/colin/my_life_changed.mp3
CC Music Remix – My Life Over the next year, another remix called Our Lives are Changing emerged, as the result of a trans-continental collaboration from the group called Tryad (producers from Seattle, Ohio, and Japan). Our Lives are Changing by rjmarshallhttp://ccmixter.org/files/rjmarshall/137
CC in focus Creative Commons and government Professor Anne Fitzgerald Government advisor, ccAustralia
CC in focus Creative Commons and government Neale Hooper GILF Implementation Strategy
CC and Government Federal BudgetPapers licensed under anAttribution 2.5Australia
Crown Copyright Vast amounts of government copyright materials Copyright applies to: Informational works Research outputs (reports, papers, databases) Cultural materials
Complex flows of Information Flow of information Within government – among departments, agencies, different levels of government between government and community: From government to community From community to government to community
Complex flows of Information Problem of “licence logjams” No licences; inconsistent terms; incomprehensible; transaction cost of negotiated permissions Promoting the flow of information requires appropriate policy frameworks and licensing practices
Complex flows of Information Creating a commons of public sector materials New conceptualisation of “public domain” Not just a no rights “wasteland [or] dump on the outskirts of respectable culture” (Bollier, Viral Spiral)
Open Access to PSI “Open access to government data can dramatically increase the value created from the data both socially and economically [and] the society as a whole benefits from access to the data”
Senator Kate Lundy, Free and Open Source Software for Geospatial Conference 2009
How do we enable PSI to move without impediment among government agencies and between government and the private sector?
Creative Commons (CC) Copyright licensing vs “no rights” approach Advantages of copyright-based open licensing approach for government: Open licensing mirrors the fundamental justification for recognising copyright in government materials Supports government’s open access policy objectives Provenance and attribution Avoids financial and technical lock-up of taxpayer-funded materials
Direct, Copyright-based Licence Copyright based, direct licences Permitted uses are consents/permissions to do acts within the scope of the copyright owner’s exclusive rights Acting outside the scope of the licence is an infringement of copyright
Creative Commons (CC) Advantages of CC for use by government: Enforceability of licence Trumpet Software vOzEmail(1996) Federal Ct, Justice Heerey Jacobsen vKatzer(US Federal Circuit 2008) Explicit statement of reuse rights Clear statement that info is sourced from government (attribution/provenance) – increased user confidence Universal recognition of symbols Discoverability of digital objects Enables legal remix and mashup
Creative Commons (CC) Attribution and Provenance Clause 4, CC-BY 2.5 Australia Legal Code Attribution requirements based on economic rights of copyright owners to maintain electronic rights management information (ERMI) and moral rights (attribution/no false attribution/integrity) Copy of CC Licence/URI of licence must be included All copyright notices must be kept intact Clear and reasonably prominent credit must be give to the Original Author Work not to be falsely attributed Must not do anything that results in a material distortion of, mutilation of, or material alteration to the work that is prejudicial to the Original Author’s honour or reputation
Creative Commons (CC) Enforceable open licences such as CC licences will be upheld by the courts, even if applied to copyright materials distributed for no financial reward – in Australia, non-contractual (bare) licences are enforceable Trumpet Software vOzEmail FCA 560 (Federal Court of Australia) failure to comply with the licence conditions may be an infringement of copyright, for which the usual remedies will apply. The most authoritative consideration to date of the effectiveness of open licences is the decision of the United States Court of Appeals for the Federal Circuit in Jacobsen vKatzer(US Federal Circuit) in August 2008 - Held that the defendant had gone beyond the scope of the open licence and thereby infringed copyright
OECD Recommendation the “Openness” principle states: “Maximising the availability of public sector information for use and re-use based upon presumption of openness as the default rule to facilitate access and re-use. Developing a regime of access principles or assuming openness in public sector information as a default rule wherever possible no matter what the model of funding is for the development and maintenance of the information. Defining grounds of refusal or limitations, such as for protection of national security interests, personal privacy, preservation of private interests for example where protected by copyright, or the application of national access legislation and rules.”
OECD Recommendation the “Access and transparent conditions for re-use” principle states: “Encouraging broad non-discriminatory competitive access and conditions for re-use of public sector information, eliminating exclusive arrangements, and removing unnecessary restrictions on the ways in which it can be accessed, used, re-used, combined or shared, so that in principle all accessible information would be open to re-use by all. Improving access to information over the Internet and in electronic form. Making available and developing automated on-line licensing systems covering re-use in those cases where licensing is applied, taking into account the copyright principle below.”
CC and PSI in Australia –a chronology 1990s: Cutler, Wainwright – digital content strategy proposals 2001: Office of Spatial Data Management (OSDM) access and reuse policy 2004: Launch of Creative Commons in Australia 2004: Launch by Queensland Government of Spatial Information Licensing Project 2005: Unlocking the Potential: Digital Content Industry Action Agenda, Strategic Industry Leaders Group report to the Australian Government 2005 – 2006: Queensland Government’s Government Information Licensing Framework (GILF) proposed use of Creative Commons licensing for PSI 2007 – 2010: GILF project continues as a Queensland Government-QUT collaboration, developing knowledge about and models for use of CC on PSI 2007 on: Australian Bureau of Statistics (ABS), Geoscience Australia (GA), Bureau of Meteorology (BoM) implement open access and adopt CC licensing; National Library of Australia; Australian Broadcasting Corporation; various State and local government initiatives
CC and PSI in Australia –a chronology 2008: OECD Ministerial Seoul Declaration on the Future of the Internet Economy - OECD Recommendations on publicly funded research (2006) and Access to PSI (2008) 2008: Venturous Australia report on National Innovation System (Cutler Report) 2009: Australia’s Digital Economy, Future Directions (Department of Broadband, Communications and the Digital Economy) 2009: EDIC Report (and Victorian Government’s response (2010) Government 2.0 Taskforce (2009), “Engage: Getting on with Government 2.0” (December 2009) and Government’s response 2009: New Zealand (draft) Government Open Access Licensing Framework (NZGOAL); UK Power of Information report 2009 – 2010: Freedom of Information/Right to Information reforms – State and Federal legislation
Unlocking the Potential Recommended that the digital content industry should: Engage with work on alternative approaches to intellectual property licensing, such as Creative Commons; Develop ways of improving access to Government intellectual property for commercial exploitation by digital content firms, to encourage innovation.
Venturous Australia (2008) Recommendation 7.7 Australia should establish a National Information Strategy to optimise the flow of information in the Australian economy. The fundamental aim of a National Information Strategy should be to: utilise the principles of targeted transparency and the development of auditable standards to maximise the flow of information in private markets about product quality; and maximise the flow of government generated information, research, and content for the benefit of users (including private sector resellers of information).
Venturous Australia (2008) Recommendation 7.8 Australian governments should adopt international standards of open publishing as far as possible. Material released for public information by Australian governments should be released under a creative commons licence. Recommendation 7.10 A specific strategy for ensuring the scientific knowledge produced in Australia is placed in machine searchable repositories be developed and implemented using public funding agencies and universities as drivers.
Victorian Parliament’s Economic Development and Infrastructure Committee (EDIC) Report, Improving Access to Victorian Public Sector Information and Data (2009)
EDIC Report (2009) - Key Recommendations Recommendation 1:That the Victorian Government release a public statement indicating that it endorses open access as the default position for the management of its public sector information. Recommendation 2:That the Victorian Government develop a whole-of-government Information Management Framework (IMF) with the following key features: that the object of the IMF is to promote and facilitate increased access to and re-use of Victorian public sector information (PSI) by government, citizens, and businesses; that the default position of the IMF be that all PSI is made available; that the IMF define and describe criteria under which access to PSI may be restricted, or released under licence; that PSI made available under the IMF be priced at no cost or marginal cost; and that the IMF establish a systematic and consistent whole-of- government methodology for categorisation, storage and management of PSI.
EDIC Report (2009) Recommendation 14: That the Victorian Government adopt the Creative Commons licensing model as the default licensing system for the Information Management Framework. Chairman’s Foreword: “The second key recommendation of the Committee is that the Victorian Government make use of the Creative Commons licensing model for the release of PSI. The Committee was told Creative Commons licences can be appropriately used for up to 85 per cent of government information and data, providing a simple to understand and widely used system for the re-use of PSI.”
Gov 2.0 Taskforce Report Engage: Getting on with Government 2.0 (22 December 2009) – http://gov2.net.au/report Central recommendation: A declaration of open government by the Australian Government Accompanying the Government’s announcement of its policy response to this report, a declaration of open government should be made at the highest level, stating that: using technology to increase citizen engagement and collaboration in making policy and providing service will help achieve a more consultative, participatory and transparent government public sector information is a national resource and that releasing as much of it on as permissive terms as possible will maximise its economic and social value to Australians and reinforce its contribution to a healthy democracy online engagement by public servants, involving robust professional discussion as part of their duties or as private citizens, benefits their agencies, their professional development, those with whom they are engaged and the Australian public. This engagement should be enabled and encouraged. The fulfilment of the above at all levels of government is integral to the Government’s objectives including public sector reform, innovation and using the national investment in broadband to achieve an informed, connected and democratic community.
Gov 2.0 Taskforce report Recommendation 6: Make public sector information open, accessible and reusable [chapter 5, p 58] 6.1 By default Public Sector Information (PSI) should be: free based on open standards easily discoverable understandable machine-readable freely reusable and transformable. 6.2 PSI should be released as early as practicable and regularly updated to ensure its currency is maintained. 6.3 Consistent with the need for free and open reuse and adaptation, PSI released should be licensed under the Creative Commons BY standardas the default.
Gov 2.0 Taskforce report Recommendation 6: Make public sector information open, accessible and reusable 6.6 Where ownership of the PSI data rests with the Commonwealth, data should be released under CC BY licence. Negotiation with the other party/parties will be required to ensure release under CC BY for PSI which is not owned by the Commonwealth or is shared with another party/parties…. 6.7 Copyright policy should be amended so that works covered by Crown copyright are automatically licensed under a CC BY licence at the time at which Commonwealth records become available for public access under the Archives Act 1983 6.8 Any decision to withhold the release of PSI, other than where there is a legal obligation to withhold release, should only be made with the agreement of, or in conformity with policies endorsed by the proposed Office of Information Commissioner… 6.9 The Australian Government should engage other members of the Council of Australian Governments, to extend these principles into a national information policy agreed between all levels of government: federal, state, territory and local
Government’s response to Gov 2.0 Taskforce report http://www.finance.gov.au/publications/govresponse20report/index.html Generally accepted Gov 2.0 Taskforce’s recommendations (12 out of 13) agreed in principle to Recommendation 6, including: 6.3 Consistent with the need for free and open reuse and adaptation, PSI released should be licensed under the Creative Commons BY standard as the default. Government’s response was released under a Creative Commons Attribution (CC BY) 2.5 Australia licence
Further examples of adoption Australian Bureau of Statistics Geoscience Australia Bureau of Meteorology NBN Implementation Study (May 2010) Federal Budget Papers (May 2010) Australian Parliament (June 2010)
Update:GeoscienceAustralia SE Asia Satellite Data for IFCI - National Earth Observation Group, GeoscienceAustralia processed satellite data used for working out the year-to-year change in tropical forest cover in SE Asia - This work is tied to international efforts to reduce the rate and impact of climate change – data forms inputs to national carbon accounting systems, which countries (and international aid sponsors) then use to objectively monitor trends in the carbon economy. Nearly all releases are under CC Australia has encouraged Thai and Indonesian space agencies to take the same approach
Federal BudgetPapers licensed under anAttribution 2.5Australia
CC and Government Guide Our Guide to Using Creative Commons 2.5 Australia Licences on Government Copyright Materials [.pdf, 3.62MB] is now available under the “Government” topic on the Creative Commons Australia site, covering: how copyright law applies to Australian government material, how copyright can be managed to facilitate beneficial open access practices by government, how CC licences can be used to achieve open access to government material, and provides practical step-by-step guidance for agencies and their officers on licensing and use of government copyright materials under CC 2.5 Australia licences.
Open Access Policies, Practices and Licensing: A Review of the Literature in Australia and Selected Jurisdictions (2009) Professor Anne Fitzgerald The full economic, cultural and environmental value of information produced or funded by the public sector can be realised through enabling greater access to and reuse of the information. To do this effectively it is necessary to describe and establish a policy framework that supports greater access and reuse among a distributed, online network of information suppliers and users. The objective of the literature review is to identify materials published in Australia and elsewhere dealing with policies, principles and practices relating to access to and reuse of public sector information. http://eprints.qut.edu.au/28026/ See generally: http://www.aupsi.org
Access to public sector information: law, technology and policy (Sydney University Press, 2010) Professor Brian Fitzgerald (Ed) Chapter 1 – Access to and Re-use of Public Sector Information (Prof Brian Fitztgerald) Chapter 4 – Open Access to Public Sector Information: Policy Developments in Australia and key jurisdictions (Prof Anne Fitzgerald) Chapter 5 – Enabling Open Access to Public Sector Information with Creative Commons licences: The Australian Experience (Prof Anne Fitzgerald, Neale Hooper and Prof Brian Fitzgerald)
v3.0 Australia Updated to keep up with developments in open access and copyright law. First significant adopter – Parliament of Australia, licensed www.aph.gov.au (including legislation, explanatory memoranda, committee reports, etc.) under an Attribution-Noncommercail-No Derivative Works 3.0 Australia.
v3.0 Australia Full implementation will occur when the new website is released in late 2010
Copyright in data compilations Protected if meets the originality threshold. Protection extends only to the arrangement of the collected components ie the particular way the data/components is presented Copyright does not apply to mere facts/information
Copyright in data compilations The originality test once considered satisfied if substantial labour or expense had been invested in collecting the materials (the so-called “sweat of the brow” approach) Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002)
Copyright in data compilations Subsequent case law has cast doubt on this position – substantial labour or expense will not be enough without also “independent intellectual effort” Dicta by the High Court in IceTV Pty Limited v NineNetwork Australia Pty Limited (2009) and also the application of the principles in IceTV in Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) (on appeal)
Copyright in data compilations Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010)
where an author or authors of a compilation can clearly be identified; and
it can be shown that the compilation is original in the sense that it is the product of:
Copyright in data compilations some “independent intellectual effort”; the exercise of “sufficient effort of a literary nature”; involves a “creative spark”; or the exercise of “skill and judgment”, then it is likely to be protected by copyright.  FCA 44 at  per Gordon J.
Creative Commons (CC) Termination on breach If a user of a CC licence breaches the terms of the licence, the licence and the rights granted under it terminate automatically. Clause 7(a), Legal Code, Attribution 2.5 Australia In the absence of a licence, the ordinary principles of copyright law come into operation. Following termination, any unauthorised use of the copyright material by the licensee may be an infringement of copyright that is subject to civil and criminal penalties.
Creative Commons (CC) Irrevocable Perpetual grant of rights, lasting for the full duration of copyright. Clauses 3 and 7(b), Legal Code, Attribution 2.5 Australia. No express provision which entitles the licensor to terminate the licence solely for the licensor’s convenience However the licensor reserves the right to release the work under a different licence or to stop distributing it at any time. Clause 7(a), Legal Code, Attribution 2.5 Australia.
References 2005-2006 - Stage 2 Report of GILF Project – Access to Government Information and OCL – An Access and Use Strategy http://www.qsic.qld.gov.au/ - see also http://www.gilf.gov.au July 2007 – First National Summit – Qld Parliament House – Conference Report on the Australian National Summit on OA to PSI - http://www.qsic.qld.gov.au/ March 2008 - Second National Summit http://datasmart.oesr.qld.gov.au/Events/datasmart.nsf/0/D5A62A2C8FAA54754A2573D40018342A?OpenDocumenthttp://www.osdm.gov.au/Events/182.aspx The Report of the Victorian Parliament’s Economic Development and Infrastructure Committee (EDIC), Inquiry into Improving Access to Victorian Public Sector Information and Data (EDIC Report), tabled in Victorian parliament on 24 June 2009 - http://www.parliament.vic.gov.au/edic/inquiries/access_to_PSI/final_report.html Response: Government of Victoria, Whole of Government Response to the Final Report of the Economic Development and Infrastructure Committee’s Inquiry into Improving Access to Victorian Public Sector Information and Data, February 2010, available at http://www.diird.vic.gov.au/diird-projects/access-to-public-sector-information Government 2.0 Taskforce report, Engage: Getting on with Government 2.0 (December 2009) – http://gov2.net.au/report
References Enabling Open Access to Public Sector Information with Creative Commons Licences - The Australian Experience’, Anne Fitzgerald et al, Chapter 14 in Access to Public Sector Information: Law, Technology & Policy (edited by B. Fitzgerald), Sydney University Press, 2010; available also at http://eprints.qut.edu.au/29773/ Building the Infrastructure for Data Access and Reuse in Collaborative Research (OAK Law Project) http://www.oaklaw.qut.edu.au/reports OAK Law Project Report No. 1: Creating a legal framework for copyright management of open access within the Australian academic and research sectors (2006) http://eprints.qut.edu.au/6099/1/Printed_Oak_Law_Project_Report.pdf ANDS Guide: ‘Copyright and Data’ http://ands.org.au/guides/copyright-and-data-awareness.html ANDS Guide: ‘Creative Commons and Data’ http://ands.org.au/guides/cc-and-data.html