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Public Rights in Copyright - Greenleaf
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Public Rights in Copyright - Greenleaf


presentation at GLAM-WIKI, August 6 2009 by Graham Greenleaf. http://glam.wikimedia.org.au

presentation at GLAM-WIKI, August 6 2009 by Graham Greenleaf. http://glam.wikimedia.org.au

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  • (Includes all of 1-4) More accurately, these describe effective rights
  • It makes some sense to talk of a ‘global public domain’ (or ‘global public rights’)
  • Values in fostering innovation, access to knowledge etc. What others are worth considering? I suggest goals


  • 1. Public Rights in Copyright: 10 principles for ‘copyleft’ Graham Greenleaf University of New South Wales GLAM-WIKI Conference, Canberra, 6-7 August 2009
  • 2. What rights do the public have to use works?
    • What rights do the public have to use works?
      • Uses of works which are outside the exclusive rights
      • Uses of works where there is no copyright owner (© has expired)
      • The public’s statutory rights to use works, where there is a © owner, which uses would otherwise be exclusive rights of the © owner
      • De facto usage of owner’s rights which go unchallenged
    • What do we call these?
      • ‘ Public domain’ and ‘Commons’ are both ambiguous in scope
      • Those favouring their broader usage want their rhetorical value
    • ‘ Public rights’ is used by me to encompass all of 1-4
  • 3. Defining public rights
    • “ Public rights” are all those aspects of copyright law and practice that provide the ability of the public to use works without obtaining a licence on terms set (and changeable) by the copyright owner.
      • “ The public” includes a class of the public, the members of which are not determined by the copyright owner.
    • Private/proprietary rights are the rights the owner of copyright in a work can effectively exercise to refuse to allow another person to use the work, except on terms set by them.
  • 4. Global & national public rights
    • Global public rights: Some elements are common to most jurisdictions
      • Formal : Constraints on public rights from near-universal adoption of Berne Convention and TRIPS (No registration, minimum terms, 3-step test etc)
        • + US multi-bilateralism through Free Trade Agreements?
      • Informal : Global effects of some aspects of the Internet (Viral licensing creating content-specific commons; Search engines creating a commons for searching texts)
    • Australian policy can’t alone change these
  • 5. National influences affecting Australia’s © public rights
    • None unique, but a distinctive combination
    • Lack of any significant constitutional limits on © (probably!)
    • The long history of legal deposit requirements
    • Crown copyright in legal/administrative documents
    • No significant other limits on the scope of © subject-matter
    • Protection of compilations perhaps even beyond the EU
    • Narrow, specific, fair dealing exceptions: inflexibility
    • Limited implied licences, broad authorisation doctrines
    • More extensive compulsory licences than many other countries
    • Highest international level of © duration, but no retrospectivity
    • Moral rights, but only co-extensive with economic rights
    • The need to accommodate indigenous rights
    • Result: Overall, Australia is inhospitable to public rights, but with significant exceptions/moderating factors
  • 6. Public rights need Principles
    • Copyright laws clearly articulate the interests of authors and other creators: the exclusive rights of the copyright owner, and all that flows from them (eg enforcement)
    • Public rights are not so clearly articulated
      • They are merely implied , or in scattered statutory provisions.
      • We need to consciously articulate, through a set of Principles, the common interests of those who support the value of public rights (is it that creativity depends on access to cultural heritage?)
      • They need to take into account distinctive national factors
    • I suggest 10 Principles to provoke discussion
      • Principles take into account Australian Digital Alliance’s (ADA’s) principles (1998) and the Adelphi Charter
      • Principles need to be separate from strategic Goals
  • 7. 10 Principles for Public Rights in Australian ©
    • Balance
    • Limits on exclusive rights
    • Minimum term
    • Preservation of Australian publications
    • Fair & flexible exceptions
    • Fair statutory licences
    • Support for voluntary licensing
    • Protection from technology & contracts
    • Proportionality in enforcement
    • Free/open access to publicly-funded content
  • 8. 1 Balance
    • Copyright laws should balance effective protection of the interests of private rights-holders (including moral rights) against the wider public interests in innovation, the advancement of learning, research, and access to knowledge that are supported by public rights in works.
    • Australia’s copyright laws should reflect our national interests, not any conflicting interests of other countries. Australia should contribute to the global sharing of public rights, enriching all.
    • Indigenous peoples’ interests require special protection.
    • The proponents of any expansion of the scope of copyright protection or its methods of enforcement should have the onus of proving the need for change.
  • 9. 2 Limits on exclusive rights
    • Copyright protection should be limited strictly to the protection of expressions and should not extend to facts (except original compilations), ideas, procedures, methods of operation or similar matter.
    • The exclusive rights of copyright owners should not be expanded.
  • 10. 3 Minimum term
    • The term of copyright protection should be limited to the minimum duration achievable, and should not be extended further.
  • 11. 4 Preservation of Australian publications
    • Australian publications should be preserved in a manner which ensures that they are available to the public for re-use when copyright expires, and are available for the appropriate exercise of public rights before then.
      • Goal: Legal deposit requirements should be extended appropriately to digital and audio-visual works (completion of the current review of Legal Deposit)
  • 12. 5 Fair & flexible exceptions
    • Exceptions to copyright law should allow fair use of works by the public in a flexible manner which can adjust to changes in technology and social practices while preserving the appropriate balance.
      • Goal: Legislative ‘safe harbours’ should be extended to give appropriate protection for intermediaries.
      • Goal: A system for orphan works should be developed which both supports innovation and creativity and is fair to rights-holders.
  • 13. 6 Fair statutory licences
    • Collecting societies and statutory licences should operate to give appropriate protection to public rights, to protect against anti-competitive conduct, and to provide maximum effectiveness and fairness to both public and private rights-holders.
  • 14. 6 Cont.
      • Goal: Collecting societies must not impede their members’ use of voluntary licences.
      • Goal: Collecting societies must not collect in relation to content intended to be fee-free.
      • Goal: The operation of all collecting societies and compulsory licences should undergo a thorough review.
  • 15. 7 Support for voluntary licensing
    • Copyright law should support and not impede the role of voluntary licensing systems in expanding public rights in works.
      • Goal: The Copyright Act should be amended to establish or clarify the means by which public domain dedications may be made.
  • 16. 8 Protection from technology & contracts
    • Technological or contractual measures should not be allowed to reduce public rights, nor distort the balance of rights.
    • Nor should they disproportionately affect other interests such as privacy.
      • Goal: The Copyright Law Review Committee’s recommendations in relation to contracts and copyright support this Principle and should be implemented.
  • 17. 9 Proportionality in enforcement
    • Copyright should generally be enforced through the civil law, with penalties that are proportional to the damage to the interests of private rights-holders.
    • Criminalisation of copyright law should be minimised and there should be no criminal offences of strict liability.
      • Goal: Offences of strict liability in relation to copyright should be repealed.
  • 18. 10 Free/open access to publicly-funded content
    • Australian publicly-funded content should be available for free public access and wherever possible should have appropriate re-use rights.
    • Public Sector Information (PSI) should be made available by governments as open content unless there are compelling reasons otherwise.
    • Governments should facilitate effective access to both PSI and any non-copyright information that they hold, and should not use any other measures to impede access to it.
  • 19. 10 cont.
      • Goal: The Cutler Report recommendations that Australian PSI should be released under creative commons licences to the maximum extent possible should be implemented.
      • Goal: The Cutler Report recommendations that Australian research, and content such as national collections, ‘should be freely available over the internet as part of the global public commons’, should be implemented.
  • 20. Background
    • G Greenleaf ‘National and International Dimensions of Copyright’s Public Domain (An Australian Case Study)’ (2009) 6:2 SCRIPTed
    • <http://www.law.ed.ac.uk/ahrc/script-ed/issue6-2.asp>