Transcript Introduction to Creative Commons

Professor Anne Fitzgerald
Creative Commons for You, and for Government,
National Library of Australia, Canberra
4 November 2011
Firstly, an introduction to us
 Anne Fitzgerald
 Overview of Creative Commons as a copyright-based
licensing system
 Neale Hooper
 How Creative Commons licences are being used in the
public sector – in government, education and research
 Cheryl Foong
 Creative Commons in the creative industries, and
discussion of new business models
What is Creative Commons?
• a standardised system for licensing the use of
copyright materials
• 6 standardised licences
– available in plain english (summary), legalese and
machine-readable versions
• Each licence grants a general permission to users to
use copyright material
– that is, to copy, publish, distribute in digital form, publicly
perform
– whether the whole or a substantial part of it
• on specified, standardised conditions
Credits: Background photo by Matthew Knott, Tasmania
CC-BY-NC-SA, http://www.flickr.com/photos/mknott/606575243/
CC is a copyright-based system of
licences or “permissions”
 Copyright law gives copyright owners the rights to authorise
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others to use their materials –permission to do specific acts
Authorisation or permission is granted in licences
Non-exclusive licences can generally be written or unwritten,
explicit or implied from the circumstances
Some permissions have been generalised and codified as
exceptions in the Copyright Act e.g. fair dealing
Not yet possible to codify the permissions for many kinds of uses
of copyright material – particularly the case for public sector
materials
The CC licences provide a simple way of granting permission to
use copyright materials, to overcome uncertainty – but do not
cover all possible kinds of permissions – other kinds of
permissions will have to be negotiated
Copyright
• Copyright exists automatically in a vast range of
content and informational works:
– literary (including computer programs and
compilations)
– dramatic
– musical
– artistic
– films
– sound recordings
– broadcasts
– published editions
• Copyright owner has extensive rights:
–
–
–
–
–
copy
publish
publicly perform
electronically communicate (eg on internet)
broadcast
Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08,
CC-BY-NC-ND, http://www.flickr.com/photos/hrdrck/3214272112/
Copyright basics
 Governed by the Copyright Act (Cth)
 No registration required
 Copyright exists automatically once criteria in the Act
are satisfied
 Copyright protects original expression
 Not ideas, information or facts
 But the form in which those ideas, information or facts
are expressed
Copyright basics
 Copyright applies to an extensive range of materials
 Broad range of rights exercisable by copyright owner
 Copyright has been extended to protect
 Technology Protection Measures (TPMs) (eg
encryption/anti-copying devices) on copyright
materials;
 Electronic Rights Management Information (ERMI)
Copyright
 Bundle of exclusive rights:
 E.g. for Literary, dramatic and musical works
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Reproduce in material form
Publish
Perform
Communicate to the public
Make an adaptation or translation
Control rental, where work is a computer program or is
reproduced in a sound recording: s 31(1)
Copyright basics
 In Australia, copyright can be effectively enforced (civil
and criminal remedies for infringement)
 As a result, the consequences of infringement will
deter use/reuse unless it is clear that the use is
permitted
 Importance of clear statement of permitted uses – to
avoid infringement
Copyright in data compilations
 Copyright applies to data compilations if they are
sufficiently original
 Copyright does not apply to mere facts/information or
trivial/obvious/mundane arrangements of data
 Copyright must apply to original data databases – TRIPs and
WIPO Copyright Treaty
 For copyright to apply, there must usually be originality provided
by some independent intellectual creation/creative
spark/application of skill and judgment
 No special legal protection for non-original data collections (cf
European Database Directive)
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
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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.

[2010] FCA 44 at [344] per Gordon J.
AUSTRALIA
Government (Crown) Copyright
 Vast amounts of government copyright materials
 Copyright applies to:
 Informational works
 Research outputs (reports, papers, databases)
 Cultural materials
 Public Sector Information (PSI) in a broad sense includes
material that is:
 created within government by government employees;
 produced externally by recipients of government funding; or
 prepared by non-government parties and lodged with government
under a statutory obligation or regulatory direction.
Creating information flows
 Complexity of information pathways:
 within government – among departments, agencies, different levels
of government; between government and community:
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from government to community; from community to government to
community; from local to national to global
 Problem of “licence logjams”
 Copyright has been relied on by governments to control access (to
prevent flow of information or to preserve commercial rights)
 Often, there is no licence, so access/use/reuse rights are unknown –
high transaction cost of negotiating new licences
 Where licences exist, terms are incomprehensible or inconsistent
 Promoting the flow of information requires appropriate
policy frameworks and licensing practices
What is Creative Commons?
Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08,
CC-BY-NC-ND, http://www.flickr.com/photos/hrdrck/3214345846/
The Commons
 Public domain traditionally referred to materials not
subject to copyright protection because
 copyright had expired; or
 The materials did not quality for copyright protection.
 Concept of public domain has been recast more
broadly to mean ‘open’ knowledge and content.
Open Access to PSI
 Creating a commons of public sector materials
 New conceptualisation of “public domain” – insisting on no
rights constrains thinking about public domain
 Public domain is not just a no rights “wasteland [or] dump on
the outskirts of respectable culture” (Bollier, “Viral Spiral”)
 Something of value in its own right – open knowledge and
content that can be accessed, reused and distributed
 Encompasses materials that are copyright-protected and
made available for access and reuse under open source
software and open content licences
Open source software/open content
concepts
• Openness (access/use/reuse) has to be structured / constructed - it does
not happen by default - requires copyright and other interests to be
actively managed to ensure the desired level of “openness” is achieved
• For intangibles / digital materials, law provides the means of structuring
openness
• Open content licensing (eg Creative Commons licences) draws on Richard
Stallman’s insights into how copyright can be used to ensure that freely
distributed software source code remains open to other software coders
(FOSS, GNU GPL)
• Absence of legal rights means just that (nothing) – if legal rights do not
exist, the only control is through lock up (secrecy) or lock down
(technological locks) – counterproductive to achieving openness
Credits: Background photo by Jayegirl99, Tasmania-4200
CC-BY-SA, http://www.flickr.com/photos/julieedgley/3258094114/
What is Creative Commons?
• You can use it on copyright materials
you create;
• You can use copyright materials created
by others that are licensed under CC
Pallarenda north of town by Rob & Stephanie Levy
http://www.flickr.com/photos/robandstephanielevy/3152737052/
Use Creative Commons on copyright materials
you create
• by applying a Creative Commons licence to copyright
material which you have created - a photograph, a short
story or article, a musical work, artwork, video, a dataset,
a multi media product - you enable others to find your
material online through using the standard search
engines; give permission to others to lawfully use your
material (eg copy, on-distribute, post to a website, value
add, mashup
– the scope of re-use will depend on which CC licence you select;
in return, you require them to acknowledge or attribute you as
the creator and copyright owner of the materials (by using the
attribution wording you select eg “Mary Jane Smothers”)
Pallarenda north of town by Rob & Stephanie Levy
http://www.flickr.com/photos/robandstephanielevy/3152737052/
Use copyright materials created by others that
are licensed under Creative Commons?
• when others apply a Creative Commons licence to
copyright material which they have created they enable
you to find their material online through using the
standard search engines; give permission to you to
lawfully use their material eg copy, on-distribute, post to
a website, value add, mashup
– the scope of re-use will depend on which CC licence has been
selected); and, in return, they require you to acknowledge or
attribute them as the creator and copyright owner of the
materials (by using the attribution wording which they selected
eg “Arthur Brown”)
Pallarenda north of town by Rob & Stephanie Levy
http://www.flickr.com/photos/robandstephanielevy/3152737052/
Standard CC Conditions of use
• Attribution (BY) – attribute the author, and no false
attribution
• Non Commercial (NC) – no “commercial use” (as
defined)
• No Derivatives (ND) – no changes allowed to
original work
• Share Alike (SA) – changes allowed, but new work is
to be distributed under the same licence as the
original work
Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08,
CC-BY-NC-ND, http://www.flickr.com/photos/hrdrck/3213598173/
Combined in a
standardised suite of
licences
BY
BY-NC
BY-SA
BY-ND
BY-NC-SA
BY-NC-ND
Credits: Background photo by photographerglen, Tasmania, CC-BYNC-SA,
http://www.flickr.com/photos/photographerglen/5910399115/
CC Licences
BY
Attribution
BY-NC
Attribution - Non Commercial
BY-SA
Attribution - Share Alike
BY-ND
Attribution - No Derivatives
BY-NC-SA
Attribution - Non Commercial - Share
Alike
BY-NC-ND
Attribution - Non Commercial - No
Derivatives
Clear and Simple
BY
Attribution
BY-NC
Attribution - Non Commercial
BY-SA
Attribution - Share Alike
BY-ND
Attribution - No Derivatives
BY-NC-SA
Attribution - Non Commercial - Share
Alike
BY-NC-ND
Attribution - Non Commercial - No
Derivatives
CC operates as a direct licence, from
copyright owner to user
How CC came to be applied to PSI
in Australia – a chronology
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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
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: Victorian Parliament Economic Development and Infrastructure Committee (EDIC) report (Government’s
response 2010)
Government 2.0 Taskforce (2009), “Engage: Getting on with Government 2.0” (December 2009)
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
2010: Government response to Government 2.0 Taskforce report, accepting key recommendations and stating that CC
BY should be the default licence for PSI
Towards the digital economy
• Emergence of digital online economy since mid-1990s
and, introduction of fast broadband  online
innovation and expansion of commercial activity
• Surging demand for new (digital) information/content
products and services
• New online business models emerging
• Creative Commons (CC)  lawful remix and re-use of
 innovative content and services
Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08,
CC-BY-NC-ND, http://www.flickr.com/photos/hrdrck/3214297464/
Putting Innovation centre-stage
Information flow is a central part of the innovation
agenda
The value of information/content is in its use/re-use
Credits: Background photo by danishwindindustryassociation, Woolnorth, Tasmania,
CC-BY-NC, http://www.flickr.com/photos/danishwindindustryassociation/4150966664/
Venturous Australia
recommendations
•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:
•maximise the flow of government generated
information, research, and content for the benefit
of users (including private sector resellers of
information).
•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.
•Information, research and content funded by
Australian governments – including national collections
– should be made freely available over the internet
as part of the global public commons, to the maximum
extent possible.
Open gate by chelmsfordblue (Nick)
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.
CC and the national information
strategy
• National information policy has various platform
components – FoI/Right to Information; data protection;
information standards
• Most countries worldwide recognise government copyright
in a wide range of data/information/content
• BUT, in many instances governments rely on copyright to impose
restrictions on use/reuse, for various reasons (eg commercial
arrangments)
• Government copyright needs to be managed to support
openness
OECD PSI 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.”
 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 reuse in those cases where licensing is applied, taking into account the
copyright principle below.”
Victorian Parliament’s
Economic
Development and
Infrastructure
Committee (EDIC)
Report, Improving
Access to Victorian
Public Sector
Information and Data
(2009)
Gov 2.0 Taskforce – “Engage:
getting on with Government 2.0”
December 2009; http://gov2.net.au
Central recommendation: A declaration of open government by the
Australian Government
Recommendation 6: Make public sector information open,
accessible and reusable [chapter 5, p 58]
6.1 By default, Public Sector Information (PSI) should be:
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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
standard as the default.
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
Commonwealth Government’s
Statement of IP Principles (2010)
 11.(b) Consistent with the need for free and open re-use and adaptation, public
sector information should be licensed by agencies under the Creative Commons
BY standard as the default.
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 An agency’s starting position when determining how to license its public sector
information should be to consider Creative Commons licences
(http://creativecommons.org.au/) or other open content licences.
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 Agencies should license their public sector information under a Creative
Commons licence or other open content licence following a process of due
diligence and on a case-by-case basis.
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 Before releasing public sector information, for which the Commonwealth is not
the sole copyright owner, under a Creative Commons BY standard or another
open content licence, an agency may need to negotiate with any other
copyright owners of the material.
Principles on open public sector
information (OAIC, 2011)
Principle 1: Open access to information - a default position
 Information held by Australian Government agencies is a valuable national
resource. If there is no legal need to protect the information it should be open
to public access. Information publication enhances public access. Agencies
should use information technology to disseminate public sector information,
applying a presumption of openness and adopting a proactive publication
stance.
Principle 6: Clear reuse rights
 The economic and social value of public sector information is enhanced when
it is made available for reuse on open licensing terms. The Guidelines on
Licensing Public Sector Information for Australian Government Agencies
require agencies to decide licensing conditions when publishing information
online. The default condition should be the Creative Commons BY standard, as
recommended in the Intellectual Property Principles for Australian Government
Agencies, that apply to agencies subject to the Financial and Management
Accountability Act 1997. Additional guidance on selecting an appropriate
licence is given in the Australian Government Open Access and Licensing
Framework (AUSGOAL).
 http://oaic.gov.au/publications/agency_resources/principles_on_psi_short.htm
l
Statement of new copyright licensing practice –
Cth Attorney-General’s website
 ‘In line with a recommendation of the Government 2.0 Taskforce
Report, Commonwealth Government agencies are now required to
release copyright public sector information under Creative Commons
BY-licences or other open content licences, wherever possible.
 If you are seeking to use Commonwealth of Australia copyright
material, this material in many cases should be available for use under
a Creative Commons BY licence. If you are unsure whether a BY licence
applies to the specific material that you wish to use, we recommend
that you contact the agency which produced that material or, if that
agency no longer exists, the current agency with the relevant policy
responsibility. The Australia.gov.au website contains links to the
websites of each Government agency. Agencies will shortly be posting
information about their copyright procedures on their websites.
 For information about how Government agencies manage their
intellectual property, refer to the Statement of Intellectual Property
Principles for Australian Government Agencies. For further
information about Creative Commons licences, see the Creative
Commons website.’
 http://www.ag.gov.au/www/agd/agd.nsf/Page/CopyrightCommonwealt
h_Copyright_Administration
Credits: Background photo by Rock Portrait Photography, Tasmania Jan 08,
CC-BY-NC-ND, http://www.flickr.com/photos/hrdrck/3214345846/
Why use CC licences?
 Other standardised licences e.g. UK Open Government Licence
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(OGL) are not fully internationally recognised
Permits international platforms (collaborations and
contributions across various sectors)
No other standardised licence has an equally supportive and
viable central organisation
CC applies to all government and non-government copyright
material (except software)
CC uses icons (which have gained full international recognition
and which are not language specific)
CC’s licence metadata / digital code is embedded, making it
machine-readable, searchable & retrievable
CC provides for a clear statement about the source of the data
(attribution/provenance) – increased user confidence
Copyright licensing –
traditional practice
 All (or most) rights reserved
 Requires prior permission from copyright owner unless
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within an exception to owner’s rights (e.g. fair dealing)
under the Copyright Act
Negotiating terms is cumbersome, time consuming,
expensive – inefficiency means high transaction costs
Has led to multiple non-standard licences
Problem of “orphan” works – no identifiable copyright
owner from whom permission may be obtained
Arose from pre-internet era - not geared to the immediate
and global nature of the internet
Features of CC licences
 Some rights only reserved
 Relatively short, simplified, standardised licences which
provide permission in advance
 Do not contain detailed provisions covering all relevant
aspects of the law
 Must be read in the context of copyright law (legislation &
judgments) and often other relevant bodies of law (e.g.
private international law – “jurisdictional” issues and
applicable law)
 Also have to be read in context of other relevant
“information” laws notably privacy (data protection),
security, and interception of communications
(telecommunications)
Simplification vs comprehensibility
and enforceability
 Why not just have a simple, short statement of users’
permissions?
 For the licences to be legally enforceable, the courts
require the copyright owner’s permissions (i.e. scope
and nature) to be clearly stated
 The courts will not simply “fill in the blanks” to deliver
the outcome which may have been intended by the
parties. The courts will look only at the actual wording.