National and International Dimensions of Copyright’s Public Domain (An Australian Case Study)
Graham Greenleaf *
Cite as: G Greenleaf, "National and International
Dimensions of Copyright’s Public Domain (An Australian Case
Study)", (2009) 6:2 SCRIPTed 259,
www.law.ed.ac.uk/ahrc/script-ed/vol6-2/greenleaf.asp
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Graham Greenleaf 2009.
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1. The
value of Australia’s copyright public domain
1.1 Introduction: What do these innovations have in common?
A set of examples follow. They all involve valuable contributions to Australian innovation in the area of information goods. They all involve copyright works in which various parties have continuing proprietary (copyright) interests. But they also involve the public (or classes of the public) having rights to use those works in ways that involve some of the exclusive rights of the copyright owner. In this article, as discussed in Part 2, I use the expression “public domain” in the expansive sense of encompassing all “public rights” in copyright. “Public rights” are all those aspects of copyright law and practice that are important in determining the ability of the public (or a significant class of the public) to use works without obtaining a licence on terms set (and changeable) by the copyright owner.
The Creative Commons slogan “Some Rights Reserved” sums up rather well the way in which the intellectual goods in the following examples combine proprietary and non-proprietary elements. However, most of the examples of what I will call “the public domain” do not involve the use of Creative Commons licences.
The theme of this article is what these examples have in common, how Australia’s copyright law and the institutions that support innovation have paid insufficient attention to what they have in common, and how – in Australia at least – we need to have a law reform review that will have these common elements (the copyright “public domain”) as its focus.
After introducing these examples, I give some further consideration to the terms “public domain” and “public rights” (Part 2), and consider how the public domain in any particular country comprises both “global” and “national” elements (Part 3), with examples of what makes Australia’s public domain distinctive (Part 4). In the second half of the article (Parts 5-13) I consider in detail eight main aspects of how a holistic approach to Australia’s copyright public domain suggests areas in need of reform, and some of the interconnections between them. From this I conclude (Part 14) that there needs to be a law reform review of Australia’s copyright law with the public rights / the public domain as its focus.
1.2 Examples from Down Under
Australians continue to make very substantial contributions to the development of open source software and thus to the Internet’s global infrastructure. Contributions to the Linux kernel have included the port of Linux to the PowerPC architecture (largely done in Canberra); the work to put Linux on Cell processors; and contributions to the Sparc processor work. Australians hold senior positions in overall Linux development, and in subsystem maintenance. Australian work on Linux networking is the basis for many companies building firewall appliances, smart routers etc. The Samba re-implementation of the SMB/CIFS networking protocol,1 initially developed at the Australian National University, has been the basis on which various companies have built their businesses. The file transfer utility rsync2 has similar antecedents. Other major contributions include the pppd dameon used by a significant proportion of ADSL home routers; the radiud authentication server used by many ISPs; the SSL library which is the cryptography engine used by much e-business (developed in Queensland); contributors to the Firefox browser; gcc use in the embedded computing market; and much development of the Gnome and KDE Linux desktop environments which are becoming increasingly important.3
The AEShareNet Licensing System,4 operated by TVET Australia, licences about 3,000 learning objects for free educational use,5 and in some cases with rights to modify, primarily for use in the technical and further education (TAFE) sector. In addition, about 600 pages on the web use its “Free for Education” (FfE) licence.6 The AEShareNet licence suite was one of the world’s earliest developments of open content licensing. AEShareNet resources are searchable along with other Australian educational resources from all sectors via Education Network Australia (edna)7 but it is not possible to limit searches there to items that are available for free educational use or modification.
PANDORA,8 described as “Australia's Web Archive” by the National Library, has developed since 1996 an expanding collection of selected Australian online publications, such as electronic journals, government publications, and web sites of research or cultural significance. Built in collaboration with nine other Australian libraries and cultural collecting organisations, PANDORA now has over 50M files (over 2 TB) comprising over 36,000 “archived instances.” It is growing at a rate of nearly 2% per month. PANDORA is archiving the history of Australia’s “online search commons.”
Australia has played a significant role in the development of e-learning platforms. LAMS (Learning Activity Management System)9 is open source software developed at Macquarie University which provides a visual tool for designing, managing and delivering online collaborative learning activities. It has been adopted in 2007 by the Northern Territory Department of Employment, Education and Training for roll-out in all of its schools.10 Moodle11 is an open source software e-learning platform, with particular strength in wiki development, and with a world-wide network of developers coordinated by the Moodle company based in Perth, Western Australia. It has a user base of 42,080 registered sites12 with 16,927,590 users in 1,713,438 courses.13
Usage of Creative Commons licences in relation to Australian content had resulted in at least 2,000 websites containing over 100,000 pages of Creative Commons licensed content as of early 2007, though this may be something of an under-estimate.14 This includes both the use of the Australian Creative Commons licences, and the use of the “generic” CC licences over Australian materials, as shown in the graph at right.15 The most popular licence attributes are “Non-commercial” and “Share-alike”. A few of the best known sites using Creative Commons licences are noted in the examples below.
Despite Australia’s Crown copyright in cases and legislation, Australian law has been the site of world-leading initiatives in free access to law. The NSW government gazetted a general licence to the public allowing reproduction of legislation and case law as far back as the 1990’s. The Australian Council of Chief Justices’ “Court designated citations” standard, adopted in 1998, has enabled cases to be authoritatively cited from the moment they are handed down. This standard has been adopted in the United Kingdom (UK), southern Africa, the Pacific Islands and elsewhere across the common law world. Since 1995 the Australasian Legal Information Institute (AustLII), a community service and research infrastructure initiative of two university law schools, has created the world’s largest free access online law resources16, including such features as free Point-in-Time legislation, and the world’s only comprehensive national treaties collection. Over 200 public institutions, including courts, tribunals, government agencies and universities, have collaborated with AustLII to produce these free access repositories. AustLII’s open source Sino search engine is used by the majority of free access “legal information institutes” around the world.
Screenrights, the collecting society for educational use of audio-visual materials, takes an innovative approach to educator’s public rights to use a-v materials. It regards this as a business opportunity for its members: “[w]ith Screenrights now collecting more than $23 million a year from educational copying, filmmakers are becoming increasingly aware of the benefits of marketing their work effectively to this sector.”17 As part of this business model, it contributes back a large quantity of free-access educational resources such as study guides, about programs which are being screened on TV , through its Enhance TV service: “[e]ducational programs to be broadcast on television are highlighted on the site, and in an email newsletter circulated to over 20,000 Australian educators every week. This gives teachers the advance notice they need to copy, and provides exposure for filmmakers.”18
Free access repositories of Australian academic research are becoming more common. Institution-based repositories are being established at various Australian Universities, including those repositories from members of the ARROW19 consortium (Australian Research Repositories Online to the World), which between them currently provide about 12,000 academic papers for free access (but usually with no licences providing other rights).20 Swinburne University of Technology has the largest repository (Swinburne Research Bank)21 with 7,003 papers, followed by Monash University ARROW Repository22 (2,516 papers), and the University of the Sunshine Coast “Coast Research Database”23 (1,933 papers). Of the ARROW databases, only the smallest, the University of New South Wales UNSWorks24 (348 papers) requires depositing authors to use a Creative Commons licence (Attribution-Noncommercial-NoDerivatives). There are significant institutional repositories outside ARROW,25 such as Bond University’s e-publications@bond (1,856 papers),26 QUT ePrints,27 University of Wollongong’s Research Online (2,064 papers),28 Flinders Academic Commons29 (1,525 papers). In addition, national discipline-based repositories are starting to develop. AustLII provides free access to over fifty Australasian law journals (6,576 papers),30 and has received ARC funding to expand this into a national Legal Scholarship Library.31
The National Library of Australia’s Picture Australia32 aims to be the definitive pictorial service for and about Australians and Australia, providing one search over collections in 45 major Australian public institutions. Pictures (photos, sketches, cartoons etc) are often only available for private research and study, but some are available for other uses.33 Picture Australia’s “Click and Flick” is an initiative to open Picture Australia to contributions from the Australian public, through uploads to Flickr using Creative Commons licences.34 Picture Australia now includes over 1.1 million images from the collections of forty-five organisations and, now, individuals via Flickr. Its federated combination of public domain images, Crown copyright images made available for free access, and images contributed by the public under voluntary public rights licences (Creative Commons) is indicative of what creative collaboration among public institutions can do.
Other major cultural institutions are starting similar initiatives. The Powerhouse Museum, Sydney is one of the first cultural institutions in the world to release its public domain images on Flickr35 (April 2008), following the example of the United States Library of Congress (launched January 2008). The Powerhouse is releasing its Tyrrell Collection, 7,903 glass plate negatives recording life in Australia around the turn of the twentieth century, of which 300 have initially been included on Flickr.36 A statement accompanies each image: that they have “no known restrictions on publication”. The example here shows Pyrmont Bridge, Sydney, at the turn of the century.37
Sites supporting creativity that use open content licences are increasing. Multimedia site 60Sox38 provides a focal point for emergent creativity in Australia and New Zealand and uses Creative Commons Australia licences. Australian Creative Resources Online (ACRO)39 hosts a repository for audio, video, and still images that can be used freely and legally for creating digital art, education, or other uses. ACRO uses both Creative Commons Australia licences and AEShareNet Free for Education licenses. The Brisbane Media Map is a database of hundreds of creative industry organisations in the Brisbane area, linked to Google maps locations, and with its content, database and software all licensed under Creative Commons Australian licences (CC-BY-NC-ND 2.1).40
Finding Australian works in which copyright has expired (the narrow meaning of “public domain”) is harder than one might expect, because there is often no way to search major catalogues (such as at the National Library) to specify only works that are in the public domain. Nor do overseas collections, such as Google Books, which include Australian public domain materials allow searches by that characteristic. Only a few specific “out of copyright” Australian collections exists. The University of Adelaide Library’s eBooks@Adelaide41 (969 records) includes more than 500 classic works of literature, philosophy, science and history (not necessarily Australian) in the public domain. Project Gutenberg Australia42 is a private initiative which includes numerous Australian works (and other works) in the public domain, and can be searched using Google’s search engine, but it is very difficult to gain any clear idea of its coverage.
Australian scientists are making use of publication in Australian or international free access research repositories, and are sometimes utilising open content licences with re-use rights. A Murdoch University research team published their simple diagnostic test for African Sleeping Sickness43 with the Public Library of Science under an Australian Creative Commons licence (CC BY 2.5).
Politics and public affairs websites make use of Creative Commons licences. YouDecide2007,44 a citizen journalism initiative between SBS, On Line Opinion, the Brisbane Institute, and QUT Creative Industries covered the 2007 Australian federal election, using the CC BY-NC-ND 2.5 AU licence. On Line Opinion45 uses the CC BY-NC-ND 2.0 licence. EngageMedia, a video-sharing website, focuses on social justice and environment issues in Australia, South East Asia and the Pacific.46
Civil society organisations are also making increasing use of open content tools. The Association for Progressive Communications Australia47 has released ten years of documentation on the use of ITC for community development, under a Creative Commons licence (CC BY-NC-ND 2.5 AU) on a publicly-available wiki for Document Freedom Day 2008.48
1.3 An important caveat
These examples of Australian intellectual goods illustrate the major role that public rights of differing types play in Australian innovation and culture. This selection of public resources is only the tip of the iceberg, both of what Australia’s public domain already comprises and (more importantly) of what our public domain could be in future.
This article is about these public rights and how they can be used to stimulate innovation and enhance national culture. But there is an important caveat which needs to be stated at the outset. Both now and in future such works which involve predominance of public rights over private rights will only be part of Australia’s creative landscape, and most probably the minor part: “[a]ll rights reserved” may continue to be appropriate for most creators, most of the time.
In Australia, changes to copyright law over the previous decade have been principally about strengthening copyright (“all rights reserved”), and have involved much less to stimulate Australia’s public domain (“some rights reserved”). The argument of this article is that we should be trying to get the most out of both methods of stimulating innovation. Other counties may have a similar need.
2. “Public rights” and the public domain
I have been using the terms “public rights” and “public domain” almost interchangeably. I will explain shortly more precisely what I mean by “public rights”. “Public domain” is an ambiguous term. In its narrowest use it means those works in which copyright has expired due to the expiry of the copyright term. A slightly broader usage includes works that do not ever attract copyright protection, and those over which the author has renounced all claims of copyright. However, it has a more modern and expansive usage which encompasses all types of “public rights”, including, in addition to the two uses already mentioned, other aspects of copyright law which give rights to the public, such as fair dealing exceptions and uses allowed under compulsory licences (and other examples given in the next section). “Public domain” in this broad sense can be used in relation to copyright49 and in relation to other forms of intellectual property rights. Samuelson provides seven different maps indicating how different scholars see this broader notion of the public domain.50 In this article, I will use “public domain” as a synonym for the broadest usage of “public rights” in relation to copyright. To avoid confusion, I will also avoid using the word “commons”, though much of the discussion could also take place using that term.
2.1 Avoiding a misleading dichotomy
If the term “public domain” is used in its narrow sense, there is a dichotomy of works: some works are in the public domain but only if they are old enough, and all other works are not. The approach taken in this article is very different, and recognises that almost all works contain both public and proprietary components, and fall somewhere on a continuum between the extremes of works which are subject to “private rights only” and those which are subject to “public rights only”. At the public rights extreme it is easy enough to envisage public domain works such as the plays of Shakespeare.51 But for practical purposes all proprietary works are at least subject to some minimal “fair use” exceptions in copyright law, and so are subject to some public rights. The proprietary extreme of the continuum is empty.52
The normal nature of works is to be a composite of public and proprietary rights, with each work situated at some point along a continuum between the two extremes. There is therefore normally a dichotomy between public and private rights, but it is one which exists within each work, rather than between works. The Creative Commons slogan “some rights reserved” recognises this inherent duality in works and builds on it.
2.2 “Effective” public rights – a useful refinement
For the purposes of this paper, I mean by “public rights”53 all those aspects of copyright law and practice that are important in determining the ability of the public (or a significant class of the public) to use works without obtaining a licence on terms set (and changeable) by the copyright owner. In other words, public rights are “The effective extent to which I can use a copyright owner’s works without seeking the owner’s permission.” Including things that determine the effective exercise of otherwise formal rights reduces the precision of the notion of public rights, but does allow us to give a richer and more useful description of a country’s public domain.
The corollary of this definition of “public rights” is that private/proprietary rights are the effective ability of the owners of copyright in works to refuse to allow other people to use those works, except on terms set (and changeable) by them.
3. The global copyright public domain and Australia
There are elements which are common to the public domains of the vast majority of jurisdictions around the world, principally because of two factors: (i) the near-universal adoption of the Berne Convention (1886) (and some effects of the TRIPS Agreement) and (ii) some effects of the Internet are global, particularly those associated with search engines and with viral licences. To some extent it makes sense to talk about a global public domain, but what is relevant here is the effect of these factors on the shape of Australia’s national public domain.
3.1 International agreements and their limitations on national public domain
The main effect of international agreements has been to restrict what can be included in a national public domain according to international law. The Berne Convention (1886)54 and its subsequent amendments55 can be seen as the main factor responsible for determining the size of national public domains, and many of their features.56 Five specific negative elements constrain public domains.
First, the most significant determinant is that in accordance with Berne, registration of works is not required for copyright (Article 18 and elsewhere). This creates a shrunken public domain, as it reverses the default condition of a work from “public” to “proprietary”. If registration is required, then it can be expected that most works will not be registered, and the public domain will be correspondingly large. When from 1978-89 the United States (USA) abandoned a compulsory registration system for copyright57 and publication and notice requirements and belatedly joined the Berne Convention (1989), this may have been the largest contraction (since Berne itself) of the scope of the world’s public domain. The absence of any requirement for registration is a major contributor to problems such as “orphan works”, where it is impossible to locate a copyright owner of a book that is out of print, but the work is still protected by copyright and therefore cannot be reproduced by others. When the United States had a registration system, only about 10% of all works registered were re-registered at the end of the twenty-eight-year term (even though the cost of renewal was small),58 so the other 90% of those works would then have entered the public domain in the pre-Berne United States environment.
The second restrictive element of Berne is the requirement of a minimum copyright term of life of author plus fifty years (Article 7(1)).59 Without this requirement, the minimum term of protection of some types of works, such as computer programs, may have been less, and they would have become part of the public domain (in the narrow sense) earlier.
Third, moral rights (including integrity) may be perpetual according to the interpretation of some state parties such as France.60 This limits the potential re-use of such works.
Fourth, the provisos to Article 9(2)61 concerning national discretion to allowable exceptions in “certain special cases” (often called the “three step test”) is seen by some as limiting the extent to which countries can expand the scope of fair use and compulsory licences, although this interpretation is highly contested (as discussed in 6.1 following). The TRIPS Agreement62 is mainly relevant to determining the nature of the public domain because it adds another version of the “three step test”.
Fifth, it is a minimum rights treaty (Article 20) and it is therefore possible for a consensus of national developments to further reduce most public rights.
There are also aspects of the Berne Convention that support the existence of public rights, or are at least neutral. These include that there shall not be protection of “news of the day” or “miscellaneous facts” (Article 2(8)). Berne leaves open for national decision (and is therefore neutral on) the vital areas of (a) compulsory licensing; (b) fair dealing and (c) protection of legal materials.63 Perhaps the most important and positive aspect of Berne is something that it does not mention, and therefore leaves outside the scope of copyright, namely that the rights to control who can read, listen to or view a work are not in themselves part of the exclusive rights of copyright owners (although these “user rights” have been made less secure by the recent laws concerning technological protection measures).
In relation to Australia, the Australia-United States Free Trade Agreement 2004 (the AUSFTA) is a bilateral agreement which has required Australia to restrict its public domain. The AUSFTA, formally passed in 2004, included requirements for the extension of the duration of protection beyond the Berne-minimum of life of the author plus fifty years, to a seventy-year posthumous period of protection, and stronger provisions for acts of circumvention involving technological protection measures attached to a digital work by the owner of the copyright.64
It is unlikely that these international agreements will be amended in the short term; indeed, the Berne Convention has not been amended since 1979, long before the rise of digital technologies. It remains one of the most significant treaties in intellectual property regulation, particularly when viewed from a public domain perspective. The obligations in these treaties that restrict the scope of Australia’s public domain are constraints on any Australian law reform. Some of these provisions may be undesirable but they are likely to be permanent. They are the settled context of our public domain. The challenge for those who wish to encourage innovation and the public interest through a broader public domain is to identify practical changes to the law which are consistent with these constraints, or reforms to policy and practices which do not require changes to the law.
3.2 The expanding informal global commons
In contrast to international agreements, global practices related to the Internet have effectively expanded public rights globally, and have therefore expanded Australia’s public domain.
The Internet’s world-wide-web from the early 1990s created a global commons for browsing and private use (including reproduction) of works that authors made accessible on the Internet. From 1996 search engines have created a global de facto commons for the searching of such works. Creation of the searchable commons has required the acquiescence of copyright owners in practices by search engine providers (particularly creation of concordances/indexes and retained caches) which may breach copyright laws on a massive scale, though this varies between countries. This is probably the largest expansion of the effective public domain to occur, at least since the development of public libraries turned the right to read works into an effective public domain. It has been described as an example of creation of a commons by “friendly appropriation and acquiescence.”65 An unresolved question at this stage is whether Google Books and other book search facilities will succeed in creating another extension, a global searchable commons for literature which copyright owners have not made freely accessible via the Internet. This now looks more likely, but the proposed Google Book Settlement66 is not yet finalised.
Viral licences67 are voluntary licences of works offered by the author of the work which allow the software or document to which they apply to be modified or combined with other software or texts, but only on the basis that the resulting software or text is available to the public under the same licence conditions. As a result, where they are adopted in preference to non-viral licences, the quantity of software or texts available to the public under the licence expands. The most effective viral licences create an intellectually very significant and rapidly expanding global public domain in certain types of information. The most obvious and important example is open source software created by the viral GNU General Public Licence (GPL) and some other Free and Open Source (FOSS) licences, There are many millions of instances of such licences being used identifiable globally, as detailed in Part 10. The most important examples in relation to textual works are Wikipedia and other collaborative reference works created under the viral GNU Free Documentation License or similar viral licences.
There has also been widespread adoption across the world of other open content licences which are not “viral”, such as those Creative Commons licences which do not include the “share-alike” attribute. Such licences expand the public domain by allowing either any licencees, or defined classes of licencees, to use the content without payment, according to terms of the (non-viral) licence. Some of these licences have national origins, are tailored to national laws, and are mainly used within a particular country (for example, the TVET/AESN licences in Australia).68 However, the greatest proliferation of content licensed under (non-viral) open content licences is of a “global” rather than national nature. The Creative Commons “movement” and its suite of licences originated in the United States and were tailored to USA law, but have been “ported” to comply with the legal environments of different countries. These suites of “CC” licences have a very high degree of similarity to the “generic” Creative Commons licences, and to those of other countries.
From the perspective of encouraging innovation through public rights, the issues raised by these developments are (i) “are there changes to Australian law needed to ensure that the de facto commons created by search engines is not at risk in Australia?”; (ii) “what changes if any to Australian law are needed to ensure that voluntary licences (viral and non-viral) creating public rights are effective, irrespective of which licences are used to create these rights?”
4. Australia’s national copyright public domain
4.1 A very brief history69
To understand how Australia’s public domain can contribute to innovation, it is necessary to appreciate all of the different types of public rights that comprise this public domain. We also need to note those elements found in other countries’ public domains but which are lacking in Australia. Given that some of the shape of Australia’s public domain has been determined by its own history, and its interaction with international influences, we need to start with an overview of that history. We then move to an analysis of the components of Australia’s public domain, in the expanded sense previously discussed.
In some form or another, the public domain has always existed in Australia. Its shape and boundaries have changed over time, but it has always been a feature of Australian copyright law. While Atkinson has noted that the rhetoric of a balancing of rights or strong public interests considerations have never been at the core of our national copyright legislation,70 they have undeniably played a role in the development of these laws. Such concerns have been reflected in the decision-making of both the legislature and judiciary.
Since the construction of the first colonial copyright legislation, in Victoria in 1869,71 the public domain has been recognised as an issue. It is clear, from this earliest statute, that governments recognised copyright was a limited right that would expire, and t