Notes from the Australian Digital Alliance Forum

I’m at the ADA Forum today, and I thought that I might as well share my notes with you as I go along. These will obviously be rather messy, but I’ll write some more thoughtful (and well-formatted) comments over the next few days. Comments in square brackets are my own, rather than the speakers’.

Morning Session

Helen Daniels

Attorney General’s Department

  • Department welcomes ADA’s attempts to influence policy, very interested to hear what the “copyright imbalance” is.
  • Frances Garry – digital technologies have brought a process of creative destruction, shaking existing business models.
  • Sustaining investment and employment in cultural industries important for government.
  • Copyright law needs to become simpler and more technology-neutral.
  • Issues relating to international copyright regimes and role of the Internet in borderless flow of information.
  • The role of the international debate and international agreements is important.
  • Government’s current copyright agenda: need to align demand for greater access with licensing agreement.
  • Attorney – review of the safe harbour provisions announced.
  • Safe harbour scheme offers incentives for service providers to cooperate in discouraging copyright infringements.
  • Attorney General also announced review of rules surrounding circumvention of “technological protection measures”.
  • IiNet case: government is examining last week’s decision carefully.
  • Government welcomes discussions between content owners and ISPs.
  • Orphan works – attorney general’s department has been monitoring, will conduct a review.
    • Internal review of the issue questions whether there is a reform option that would result in a better situation than what we currently have.
    • Desirable to have a consensus on the way forward across relevant stakeholders.
    • Want a solution that stretches across borders.
  • Other government projects will shape copyright reform:
    • Conroy’s Convergence review.
    • Book Industry Strategy Group – workshops to develop a strategy. Report expected in September.
    • Consultations on ACTA. Transpacific partnership agreements.
    • WIPO – movement on copyright. Hopes for agreement on access for vision impaired. WIPO also discussing additional intellectual property provisions for indigenous knowledge.
  • limits to independent Australian copyright reform:
    • Our international obligations limit the possibilities.
    • Copyright not always shaped through legislation. Government can encourage mediation, flexibility from stakeholders.
    • Government releases commonwealth information under a CC license by default.
    • Commonwealth commissioned software copyright to be held by developer, not the commonwealth. [how is this working in practice?]
    • Google books settlement: an example of independent policy solutions.
    • Key role for stakeholders.
  • Inflexibility and complexity do little to encourage public confidence in copyright law.


Q: PSI reforms and CC licences: if the government makes information available for free under no license, Crown copyright still an issue.

A: Agencies should be releasing material under CC, unless there’s a good reason not to do so. This is still in progress. Also some issues with legacy material still under Crown copyright.

Q: Revised guidelines seem to say that if agencies use a license, it should be CC. However, no obligation to use a license.

A: maybe we’ve taken that for granted, because the decision is that it should be released under CC or a modified CC license appropriate to the data.

Q: are you taking steps to prevent material out there from being privatised?

A: No, we’re not.

Q: then there’s nothing to stop that information from becoming privatised.

A: Yes, we took that into account in constructing the guidelines.

[Surely this would depend on which CC license is used?]



Dr Nicholas Gruen


Lateral Economics

Key question: “is intellectual property like property?”

A: yes, kind of, but there are important ways in which it’s not.


Differences between property and IP


  • indeterminacy of boundaries and threshold tests,
  • regulatory/judicial creep,
  • non-rivalry.


Public goods:

Formal definition: “goods that noone will supply if the government doesn’t”.


Ostrom’s work important. Public goods not always built by the government.


Adam Smith:

  • Before Wealth of Nations, wrote The Theory of Moral Sentiments, about the social preconditions of markets.
  • Sees public and private goods as part of an ecology.


Web 2.0 platforms that are public goods include Google, Twitter, Facebook.


Emergent public goods: language, linux.


Public goods can be emergent, distributed on a platform, on coercively and centrally funded.


We’ve previously seen public goods as a problem, but we should see them as an opportunity.


Issue: many public goods (eg. Wikipedia, Google) are excludable, but for various reasons (eg. Profit, philanthropy), they remain freely available.


IP: the basic economics

  • Never a case for IP unless it generates more benefits.
  • When uncertain, whose side should we be on? Argues that we should be on the side of the producer.
  • “The losses from under-investment exceed the losses from overpricing.”

[@piecritic comments: “Seems to be the old-school economic thought that completely ignores the fact we’re in a post-scarcity economic situation now. #adaforum”]


First & Second order tradeoffs.

First order: costs and benefits roughly equal.

Second order: either costs or benefits clearly prevalent.


As you extend copyright extension over time, key benefits plateau (around 20years). Most benefits in the first 10-15 years.


First order tradeoffs for copyright extension up until around 22-23 years, after that you’re into second order tradeoffs (in other words: costs far outweigh benefits).


Political economy of IP: “IP is promoted by IP owners, IP agencies and IP exporters.”

  • Sometimes without plausible economic rationale.


Over-specified IP rights: “for patents monopoly rights to sell into a territory is the core (first order)


Patents also come with other rights, eg. To important and manufacture.


Patents expire later in Australia than in other major markets, because

  • Australia offers 5year patent extensions.
  • Patent owners apply for marketing approval later.


(skipped over some issues with large pharmaceutical issues in Australia, and international issues.)


Issues with making changes to AU copyright law – compliant with all of our international agreements (eg TRIPS). Australian policymakers ended up worrying about the legal risk, and not making the changes. However, our treaty obligations don’t constitute a legal risk, although they may require us to back down.


The pathology of IP:

  • initial over-specification of rights.
  • Uncompromising politics of retaining rights,
  • expansion of rights
  • endless reviews,
  • overcompliance with international agreements.


The biggest problem with IP is not hurting consumers, who will benefit if overprotection of IP results in more IP.


Issue is IP constraining innovation [I think I caught this correctly?]


Patents kind of work for pharmaceutical and chemicals (for the companies), not in other areas – firms are forced to patent work to stop other firms from taking out patents, costs outweigh benefits.


Issue: transaction costs high.


Qualitative issues:

  • orphan copyright, (really, this is crazy – we have an asset that nobody wants, it’s been demonstrated that nobody wants it, and we can’t bring ourselves to use it. Even in property law we have laws of adverse possession. We could produce large benefits for negligible costs for using orphan works.)
  • Need more liberal fair use exemptions.
  • Education, research, archiving, indexing, preserving and non-commercial permissions,
  • Scope of IP rights
  • Move towards focus on damages to exclusive rights, not monopoly.


We should allow use of copyrighted material where it won’t conceivable damage the owner.

The Internet relies on and is meant to foster low transaction costs.


CC is an API in copyright, it is a pre-permission. This doesn’t stop people from making private goods from it, but the content is still available for others to use. [@piecritic notes: “ Now he _really_ misused the term API to say that CC is an API to copyright. Sure, as an analogy. #adaforum”]


National Library of AU does not have the rights to access and provide access to Australian Internet content. PANDORA requires permissions from each domain owner.

  • Over 2009, 16 million web-pages were archived in PANDORA, [as opposed to]
  • 700 million .au webpages in two months by a web-crawler.


Righting the IP Imbalance

  • Domestically: reduce IP where the private economic gains are second order.
    • Move IP from absolute monopoly towards rights to commercial exploitation.
    • IP bodies should promote stronger economies, not stronger IP (believes that WIPO and AU bodies are shifting well in this direction)
    • Promote transparency (as with Productivity Commission)
    • Focus on cumulative use of IP.
  • Internationally:
    • we’re too timid.
    • We focus too much on our national interest as IP producers, should think more of ourselves as IP consumers (US and perhaps Switzerland the only IP exporters).
    • Coordinated international negotiation for IP improvements.
    • Need something like the Productivity Commission at the international level to do independent analysis.
    • A more robust approach to diplomacy, and principle-based diplomacy.
    • More robust domestic behaviour within international arrangements, remembering there is no ‘legal risk’ to Australia.


Q: What happened to the legal deposit inquiry from 2007 that was meant to protest the national library and others from issues with legal protection for web archiving?

A: (from Helen Daniels) This hasn’t disappeared completely, discussions underway, but ministers need to make some decisions.

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