Professor Anne Fitzgerald Queensland University of Technology Law Faculty Creative Commons Australia Creative Commons and the Digital Economy (Lecture 4/4) QUT 16 November 2012 © 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia.Creative Commons Attribution 3.0 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. © 2012 Anne Fitzgerald..

Public sector components Government Federal State Local Education Secondary Tertiary Research Publicly-funded research institutes Government agencies e.g. CSIRO © 2012 Anne Fitzgerald..

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 collections of data - this is a requirement under the TRIPs Agreement 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 Most countries (including Australia and US) do not have an additional (sui generis) legal protection for collections of data (cf European Database Directive) © 2012 Anne Fitzgerald..

Creating information flows Complexity of information pathways: within government – among departments, agencies, different levels of government; between government and community: 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 © 2012 Anne Fitzgerald..

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 © 2012 Anne Fitzgerald..

Building the commons Openness is not a naturally occurring (or enduring) state Openness must be constructed When dealing with intangible interests in intangibles, openness is achieved using legal tools (Uhlir, Reichmann, Stallman, Lessig) “free beer” vs “free as in speech” Stallman – the latter, not the former; the free beer approach will not achieve openness for data – instead, can lead to lock up/lock out © 2012 Anne Fitzgerald..

Understanding the Creative Commons licences a standardised system for licensing the use of copyright materials a suite of 6 standardised licences available in 3 forms: plain english (summary); legal code and machine-readable code Each licence grants baseline permissions 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 core conditions

Central elements of CC licences Baseline Permissions Core Conditions

Baseline Permissions Fundamental baseline rights granted by all CC licences: Reproduce Distribute Publicly perform On condition of Attribution Additional baseline permission granted in four of the six CC licences to create derivative works and Reproduce Distribute Publicly perform the derivative work

Core Conditions Attribution (BY) – attribute the author, and no false attribution This applies to all CC licences 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 * ND and SA cannot be used together

Licence combinations

CC BY Core condition: Attribution (BY) – attribute the author, and no false attribution Baseline Rights: Reproduce Distribute Publicly perform Create derivative works (and reproduce, distribute and publicly perform the derivative work)

How CC came to be applied to 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 (GILF) 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; Declaration of Open Government; Commonwealth Government IP Principles 2011: Queensland Government’s IP Principles – CC BY as the default licence 2012: Attorney-General’s revised Intellectual Property Manual - CC BY as the default licence

I love A sunburnt country A land of sweeping plains Of ragged mountain ranges Of droughts and flooding rains. My Country, Dorothea McKellar (1904) … ‘ ‘Uluru at sunset’ by Richard Fisher,

Cyclone Larry – Far North Queensland (March 2006) Adoption of open content licensing (Creative Commons) as the default position for distribution of government copyright materials

Licence logjams after Cyclone Larry Problem of access to data held by different government departments (State/Federal) and government-owned utility companies (power/gas) Governments traditionally relied on Crown copyright to control access to information (to restrict flow of information or to preserve commercial rights) Survey of Queensland government departments found that the majority of government business units did not use any formal licensing For those that did, the legal frameworks varied significantly - “standard” approaches were outdated - many derivatives of licences Often, there was no licence, so access/use/reuse rights are unknown – high transaction cost of negotiating new licences Where licences existed, terms were vague or inconsistent No standard approach towards data access for users Complexity for anyone outside dealing with multiple agencies Potentially more difficult for Gov agencies to deal with each other than to get same information from outside Government

Simplifying information licensing How to overcome the “George Street shuffle”? Strengthening commitment to ensuring that information would be accessible and reusable across the public sector and utilities Crown copyright in informational works should be managed so as to enable (not prevent) access and reuse Government Information Licensing Framework (GILF) project (QUT and Queensland Government) proposed the application of Creative Commons licences to government copyright materials – permission for copying and distribution From 2007/2008 GILF proposals were taken up by major federal government departments with location and geospatial data: Geoscience Australia, Australian Bureau of Statistics, Bureau of Meterology © 2012 Anne Fitzgerald..

Black Saturday Bushfires – Victoria (February 2009) Direct provision of raw data in open formats suitable for immediate reuse

‘Burning Trees’ by Sascha Grant,

‘Mother Nature’s Fury’ by Valley_Guy (Graeme),

‘Region of sorrow…’ by Elizabeth Donoghue,

Sam the Koala and David Tree Victorian bushfires, February 2009 Vale Sam

Black Saturday Over 400 individual fires recorded on 7 February 2009 Affected 78 townships, destroyed 2,030 houses and > 3,500 structures Displaced an estimated 7,562 people 414 people injured 173 deaths – Australia’s highest ever loss of life from a bushfire © 2012 Anne Fitzgerald..

Google Victorian Fire Map

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

Towards an information policy From 2005 on – reviews of government information access and reuse practices Queensland Government Information Licensing Framework (GILF) report (2006) Cutler review (2008) Victorian Parliament review of access to PSI (2009) Government 2.0 Taskforce (2009) Lawrence (UK Ordnance Survey) reviews of spatial policy and practices (2011) reform of Freedom of Information (FoI) schemes – introduction of Right to Information (RTI) proactive disclosure principles and practices (2009 on)

Review of the National Innovation System (Cutler review) 2008 Information flow is a central part of the innovation agenda The value of information/content is in its use/re-use

Venturous Australia (Cutler report, 2008) Open gate by chelmsfordblue (Nick) 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.

Venturous Australia (Cutler report, 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.

Victorian Parliament Economic Development and Infrastructure Committee (EDIC) Improving Access to Victorian Public Sector Information and Data (2009) © 2012 Anne Fitzgerald..

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 re- use in those cases where licensing is applied, taking into account the copyright principle below.”

Gov 2.0 Taskforce – “Engage: getting on with Government 2.0” December 2009; 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: 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. © 2012 Anne Fitzgerald..

Government’s response to Gov 2.0 Taskforce report 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 © 2012 Anne Fitzgerald..

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. An agency’s starting position when determining how to license its public sector information should be to consider Creative Commons licences ( or other open content licences. 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. 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. © 2012 Anne Fitzgerald..

Office of Australian Information Commissioner - Principles on open public sector information (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 Additional guidance on selecting an appropriate licence is given in the Australian Government Open Access and Licensing Framework (AUSGOAL). l

Australian Government Attorney General’s IP Guidelines and IP Manual (2012) In 2012, the Australian Government released two documents which implement the Statement of IP Principles for Australian Government Agencies: Guidelines on Licensing Public Sector Information for Australian Government Agencies; Australian Government Intellectual Property Manual (IP Manual). Both documents are available on the Attorney-General’s Department website under the CC BY 3.0 Australian licence. Attorney General’s IP Manual makes it clear that PSI should be released by default free of charge under a Creative Commons Attribution (CC BY) Australian licence by default. (Chapter 9 - “Sharing and Granting Public Access to IP”) Agencies are now required to make licensing decisions about whether to use Creative Commons licences (or other open content licences) when publicly releasing their PSI. © 2012 Anne Fitzgerald..

Chapter 9 – IP Manual - Sharing and Granting Public Access to IP (2012) Part of the Commonwealth’s response [to the Government 2.0 Taskforce’s report Engage: Getting on with Government 2.0 (2009)] is to make PSI available under the default Creative Commons BY licence (otherwise known as an attribution licence) which allows the greatest access to potential users. Agencies are now required to make licensing decisions about whether to use Creative Commons licences (or other open content licences) when publicly releasing their PSI. Australian Government agencies subject to the FMA Act are expected to comply with this default, with CAC Act agencies asked to consider this position as an expression of good practice.” [emphasis added] (at p 183)

Chapter 9 – IP Manual - Sharing and Granting Public Access to IP (2012) “There is detailed information on the Creative Commons Australia website about Government use of Creative Commons licences: The international Creative Commons website also includes a simple tool to help select an appropriate Creative Commons licence: - note however that you must specify Australia as the relevant jurisdiction in order to generate an Australian version of the license in question.” [emphasis added] (at p 187)

Queensland IP Principles (2011) Queensland Government IP Principles (revised 2011) endorse the use of CC licences and specify that the CC BY licence is the default licence, to be applied as a first choice unless there are clear indicators that the default licence is inappropriate in the circumstances: Clause 1.3: Creative Commons licensing of government copyright information In assessing the appropriate licence to apply to public information, the Government Information Licensing Framework (GILF) mandates that: (a) agencies license their public sector copyright information using the Creative Commons least restrictive licence (i.e. the Attribution BY licence) as the default licence of preference following a process of due diligence assessment on a case-by-case basis. However this least restrictive licence may not always be the appropriate licence to use. © 2012 Anne Fitzgerald..

Examples of Government use of CC Australian Bureau of Statistics (ABS) – 2007/2008 Geoscience Australia (GA) Federal Treasury – Budget Papers, 2010, 2011, 2012 ComLaw Australian Parliament Emergency response report and wiki Note – adoption of CC pre-dated the Gov 2.0 Taskforce in 2009 and acceptance of its recommendations in 2010 Credits: Background photo by Matthew Knott, Tasmania CC-BY-NC-SA, © 2012 Anne Fitzgerald..

AUSTRALIA

Geoscience Australia - Landsat 8 data New Landsat 8 satellite to be launched in early 2013 Upon full implementation, which involves the deployment of major infrastructure upgrades by GA, data will be beamed from Landsat 8 on a daily basis to GA-operated ground stations in Alice Springs and Darwin. As soon as possible after receipt and processing, GA will make the satellite images publicly available free of charge. GA will make Landsat 8 satellite images available under a Creative Commons Attribution 3.0 Austalia licence (CC BY) to facilitate legal reuse of the images GA already involved in projects with Indonesian government and is applying CC BY to data Jeff Kingwell, Section Leader of GA’s National Earth Observation Group : Our experience is that using the Creative Commons Attribution Licence – which is the default licence for GA information – makes the data more useful and easier to apply. For example, to help the Indonesian government to monitor forest management, GA supplies Landsat data from a number of foreign data archives. Since we can apply the same licence conditions to each data source, the information is much more useful and easier to share and reuse. © 2012 Anne Fitzgerald..

AUSTRALIA

2010 Federal Budget Papers licensed under CC Attribution 2.5 Australia 2011 and 2012 Federal Budget Papers under CC Attribution 3.0 Australia

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ABC “80 Days that Changed our Lives” To celebrate ABC’s 80th anniversary, ABC released 22 files capturing historic moments on Wikimedia under CC BY-SA first collection of broadcast “packaged” footage released to Wikimedia Commons under a free license

NZGOAL NZ Government Open Access and Licensing framework (NZGOAL) approved by Cabinet in 2010 standardises the licensing of government copyright works for reuse under CC licences (CC BY as the default) and recommends the use of a ‘no-known rights’ statement for material not protected by copyright. provides a Review and Release Process online tool to assess whether PSI can be released for re-use and under what conditions

NZGOAL Policy Principles “Open access to copyright works with Creative Commons Attribution (BY) licence as default [Unless a restriction applies] State Services agencies should make their copyright works which are or may be of interest or use to people available for re-use on the most open of licensing terms available within NZGOAL (the Open Licensing Principle). To the greatest extent practicable, such works should be made available online. The most open of licensing terms available within NZGOAL is the Creative Commons Attribution (BY) licence.”

NZGOAL and CC Application of CC to geographical information by government agencies At the national level,: Land Information New Zealand (LINZ) licences information on the Ocean Survey 20/20 web portal (which covers New Zealand’s Exclusive Economic Zone (EEZ), Continental Shelf and the Ross Sea Region) under a CC BY licence. Minister for the Environment has released its Land Cover Database and Land Environments NZ classification under CC BY through web portal Koordinates. Local government bodies have also released geographical datasets on Koordinates under a CC BY licence (covering subject matter from flood hazards to passenger transport information). attributing/. attributing/ Wellington City Council, Northland Regional Council; and Auckland Regional Council

Christchurch Earthquake 2011 Through the standardised review and release process, government agencies rapidly released CC-licensed information eg LINZ’s aerial photographs of the city’s damage. ‘Post-quake imagery of Christchurch carries CC licence’, CC NZ News, 2 April 2011, available at imagery_of_christchurch_carries_cc_licence. imagery_of_christchurch_carries_cc_licence A non-government project, the Christchurch Recovery Map, an open ad crowd-sourced map application recording the damage and relief reports through the city, was licensed under CC BY. (note that the map is no longer available). Various projects documenting the devastation and recovery efforts (by organizations such as the Canterbury Earthquake Recovery Authority, the Defence Force, and the Ministry of Civil Defence and Emergency Management) have been released under CC licences. See Ross Becker Photos at and on Picasa at See Flickr Collection: Christchurch Earthquake February 2011, available at 31/. 31/ See ‘VIDEO: Central Christchurch, two weeks after the quake’, National Business Review, 19 March 2011, available at quake-ck quake-ck-88665

Vocational training materials vocational training packages (modules) on training.gov.au previously licensed under AEShareNet licences 1n 2011 shifted to CC BY ND licence – see © 2012 Anne Fitzgerald..

Adapt project: teaching adaptations 2012 pilot project - Bridging the Gap: teaching adaptations across the disciplines and sharing content for curriculum renewal. led by the University of Tasmania, with support from the Australian Government’s Office of Learning and Teaching (OLT) aims to ‘enhance the teaching of adaptations (the study of the adaptation of an original novel, play, film, poem, video game or other form of narrative to a different medium) in an Australian context through the creation of a community of practice of scholars’. will develop a repository of OER relevant to learning and teaching adaptations. See educational-resources/open-education-resources. educational-resources/open-education-resources © 2012 Anne Fitzgerald..

USQ OpenCourseWare University of Southern Queensland (USQ), based in regional areas (Toowomba, Hervey Bay and Springfield) provides distance education programs 75% of USQ’s students study by distance education USQ’s OpenCourseWare (OCW) portal makes 10 courses available under a CC BY-NC-SA licence. See the OCW FAQs on how to cite USQ’s materials: © 2012 Anne Fitzgerald..

National Health and Medical Research Council (NHMRC) policy on access to research publications and data Revised policy, effective 1 July 2012, mandates that: any publications arising from an NHMRC supported research project must be deposited into an open access institutional repository within a twelve month period from the date of publication. policy-dissemination-research-findings policy-dissemination-research-findings © 2012 Anne Fitzgerald..

Joint Statement on Data Sharing of Public Health Research NHMRC is a signatory to the Joint Statement on Data Sharing of Public Health Research issued by the Wellcome TrustJoint Statement on Data Sharing of Public Health Research Joint Statement expresses a commitment to the timely and responsible sharing of public health data: Much of the data collection that could improve public health research is expensive and time-consuming. As public and charitable funders of this research, we believe that making research data sets available to investigators beyond the original research team in a timely and responsible manner, subject to appropriate safeguards, will generate three key benefits: faster progress in improving health better value for money higher quality science. © 2012 Anne Fitzgerald..

Collaborative data sharing Atlas of Living Australia - funded by the Australian Government to develop an authoritative, freely accessible, distributed and federated biodiversity data management system encourages contributors to upload their materials under a CC licence via the system’s contribution form. See ALA Data Licensing FAQs at © 2012 Anne Fitzgerald..

Reef and Rainforest Research Centre

Advantages of using CC Discoverability and retrieval of CC materials by search engines (CC machine readable code) Explicit statement of re-use rights: information provided upfront to users about what they CAN do with the material Standard, internationally recognised icons depict the licence conditions – surmounts language barriers Facilitates legal re-mix and re-use of CC-licensed materials Identification and attribution of the creator/owner of the licensed material Licences have been held to be valid and enforceable by courts © 2012 Anne Fitzgerald..

Advantages of CC in the public sector mirrors the fundamental purpose for recognising copyright in government materials supports government’s open access policy objectives – contributes to the body of publicly funded content available for innovative reuse clear statement about the source of the data (attribution/provenance) – increased user confidence avoids financial and technical lock-up of taxpayer-funded materials © 2012 Anne Fitzgerald..

CC & Government Guide CC & Government Guide: Using Creative Commons 3.0 Australia Licences on Government Copyright Materials Anne Fitzgerald, Neale Hooper & Cheryl Foong (2011) Townsville Tripping by Rob and Stephanie Levy © 2012 Anne Fitzgerald..

Thank you Professor Anne Fitzgerald QUT Law School CC Australia Publications ( html) html Access to Public Sector Information ( Creative Commons Australia ( © 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia.Creative Commons Attribution 3.0 Australia