Peer-reviewed Special Issue:
Creating Commons |
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Introduction to the Special Issue
Graham Greenleaf, p.7
Professor Graham Greenleaf introduces this special issue of
SCRIPT-ed, based on
the Unlocking IP 2006
Conference "Creating Commons: The Tasks Ahead in Unlocking IP",
University of New South Wales, 10-11 July 2006.
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Finding and Quantifying Australia’s
Online Commons
Ben Bildstein, pp.8-37
Exploration of the online
commons is relatively new. The original landscape of the World
Wide Web was very spread out, and traversing it usually meant
following links from page to page. At this stage, the only way to
find works with public rights was to stumble across them. With the
growth in search technology, the Internet became much more
accessible, though it has surely grown to compensate. At this
stage, it was possible to search for online commons, but only in
the most rudimentary way – trying to guess which words were more
likely to be found on pages with public rights, and then searching
for them. Now, with the slow transition towards the Semantic Web,
we are seeing an Internet that is even easier to traverse – where
there are web pages that know something about themselves,
something that can be communicated to search engines, and the
landscape of the Internet can come to life.
This paper briefly describes some of the ways that online commons
can express their public rights, followed by an exploration of the
ways in which people can go about finding works that are part of
Australia’s online commons, using current tools. Then, using some
of these techniques, data are gathered and analysed, to give an
overview of the current state of some parts of the online commons
in Australia. Lastly, consideration is given to what these finding
may imply for the future of the online commons.
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Simplification and Consistency in
Australian Public Rights Licences
Catherine Bond, pp.38-58
Given the significant
increase in Australian public rights licences over the last five
years, questions must be asked as to how these licences can be
further simplified to increase both usage and ease of use. While a
number of public rights licences are available in several formats,
many are long in length and contain tricky legal jargon that may
deter potential users. Simplification must be considered from the
perspective of both potential licensors and potential licensees. I
suggest in this paper that this could occur through the drafting
of two formats for licences: a longer version for potential
licensors and a short version for licensees, both adopting simple
language and avoiding complex legal terminology. Further, we must
also consider whether consistency between licences is an important
factor, with three questions requiring evaluation: whether
consistency is needed, whether consistency is feasible, and
whether consistency should be addressed on both a national and/or
international front. I conclude that while consistency is both
needed and feasible on a national level, differing ideologies
between licensing bodies may prevent consistency being achieved on
an international level.
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Business Models to Support Content
Commons
Roger Clarke, pp.59-71
The application of
conventional, 'scarce resource' economics to content has been
mistaken and harmful. More appropriate forms of economic analysis
highlight the critical role that accessibility to information
plays in the process of innovation. Meanwhile, down at the
micro-economic level, there is an all-too-common perception that
open content approaches are unsustainable and bad for business,
and reflect naïve idealism on the part of their proponents. This
paper identifies a range of suitable business models, and thereby
demonstrates that the content commons is sustainable and
appropriate for profit-oriented business enterprises.
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Creative Commons – The Next
Generation: Creative Commons licence use five years on
Jessica Coates, pp.72-94
Since its launch in 2001,
the Creative Commons open content licensing initiative has
received both praise and censure. While some have touted it as a
major step towards removing the burdens copyright law imposes on
creativity and innovation in the digital age, others have argued
that it robs artists of their rightful income. This paper aims to
provide a brief overview and analysis of the practical application
of the Creative Commons licences five years after their launch. It
looks at how the Creative Commons licences are being used and who
is using them, and attempts to identify likely motivations for
doing so. By identifying trends in how this licence use has
changed over time, it also attempts to rebut arguments that
Creative Commons is a movement of academics and hobbyists, and has
no value for traditional organisations or working artists.
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The Future Of Fair Dealing In
Australia: Protecting Freedom Of Communication
Melissa de Zwart,
pp.95-116
This article considers
the role of the concept of freedom of communication within the law
of copyright in Australia. It concludes that the judicially
articulated implied Constitutional guarantee of freedom of
political communication is too narrow to act as a control upon the
contours or nature of copyright law. However the doctrine of fair
dealing encompasses elements of freedom of communication and
provides some scope for the recognition of such rights under
Australian law.
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Creating commons by friendly
appropriation
Graham Greenleaf,
pp.117-135
The relationships of
the world-wide-web and its search engines to the ways in which
‘intellectual commons’ are created, has received little
consideration. I argue that the operation of Internet-wide search
engines constitutes the creation of an intellectual commons. The
history and features of the Google search engine are the principal
example. They illustrate what is probably a very unusual method by
which commons are created, which I call ‘friendly appropriation’.
I identify eight conditions which are conducive to the creation of
commons by friendly appropriation. Some examples are given of
other situations which may constitute friendly appropriation, and
of some which do not.
Instances of commons arising by this means may be rare, but a
fully-developed theory of intellectual commons needs to recognise
when they occur.
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Without Walls: Copyright Law and
Digital Collections in Australian Cultural Institutions
Emily Hudson and Andrew T Kenyon (published
in volume 4:2)
Digital communications
technologies are providing new means for museums, galleries,
libraries and archives to pursue their public interest missions,
including in relation to access. However, as practical impediments
to collection access change, copyright law poses significant
challenges to the development of digital collections. This article
uses recent experience in Australia to discuss copyright’s impact
on digitisation, and to explain why and how copyright has
influenced the cultural institution “without walls”. It also
describes recent amendments to Australian copyright law – in
particular, introduction of a flexible exception for some
activities by cultural institutions. This may represent an
important development in Australia, and offers relevant case study
internationally, for addressing copyright issues about digital
access.
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Cooperative Intellectual Property in
Biotechnology
Diane Nicol, pp.136-151
This paper briefly
considers some of the perceived problems associated with the
exclusive rights model of patent management in biotechnology. It
then goes on to explore the range of legal options for dealing
with some of these perceived problems, together with alternative
co-operative approaches that are currently under discussion in
various forums, including open access models. This review shows
that there are many parallels in the issues currently being
debated in the information technology and biotechnology industries
in relation to the copyright and patent regimes of intellectual
property.
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