Australian Digital Alliance Forum (part three)

Introducing Flexibility

Professor Anne Fitzgerald

  • Andrew Christie has come up with a model for how to simplify copyright.
  • How to get a pragmatic approach to dealing with copyright?
  • Good ideas on how to create more flexibility from looking at needs of the public sector. GLAM sector has quite a large amount of orphaned work.
  • Obama administration has given 2bn for development of open access educational material.
  • How to enliven use of copyright in the public sector?
  • Understanding copyright as a fundamental aspect of literacy in the digital age. We need hands-on workshops.

Professor Andrew Christie

Melbourne Law School

  • Discusses 1998 CLRC Simplification Report (Part 1): sensible recommendations:
    • Consolidate fair dealing provisions,
    • Expand fair dealing to an open-ended model,
    • Apply fairness provisions across the board.
  • The exception is copyright owners’ IP rights, the rule is free competition.
  • The need for a small exceptions space carved out from copyright owners’ IP rights, but this space is constrained by international agreements (particularly mentions TRIPS).
  • We could have an exceptions space defined by a flexible, TRIPS-consistent 3-step space.
  • Proposes several different models for defining the exception space from copyrights.
  • Government didn’t act on the CLRC for eight years.
  • Also issues around gene patents – little government action, and of course the problem doesn’t go away.
  • Key lesson: don’t just hand down a report and think it will lead to action. You need agitation to get action.

Ishtar Vij


  • Huge amount of potential online.
  • [Missed a bit here. Sadly. Looks quite interesting. Mostly seems to be about creativity online, and potential to use it to make money.]
  • Copyright:
    • should encourage innovation.
  • Key aspects of good copyright:
    • Safe harbours,
    • Exceptions,
      • system-level caching,
      • search,
      • flexible exceptions (eg. Not tech-dependent),


Q: Given the difficulty in using the current 3-step test, how do you see this working in pratice?

A: (Andrew Christie) Basically, what it says is that unless the activity is unreasonable and causing damage to copyright owners, it should be okay. We need to just form a judgement: if something’s not unreasonable: do it!

Q: Under what conditions should people be able to opt-out of caching websites.

A: (Ishtar Vij) Already able to opt-out using robots.txt. Once something’s already gone into the cache, Google responds to take-down requests.

Q: My question is: you do this now, this is Google’s defence mechanisms. But if the law was changed to allow Google to cache, would it still allow opt-outs.

A: In the US law, we already have the right, and we still allow opt-outs. There’s no reason that would be different anywhere else in the world. We’re a global service. It’s something that we do, and we’re happy doing it.

Q: Using the language of the three-step test could lead to problems with a shift towards paying more attention to TRIPS [might not have got this quite right].

A: (Andrew Christie) I agree. Better to go with the CLRC recommendations for Fair Dealing. They key, though, is to get the concept right, not the language: if the dealing’s fair, it should be allowed. [hmm…this is not my impression of how law works!]

Q: It would be interesting to see if there’s more consensus in the user consensus now about how these provisions should be dealt with.

Q: (Anne ) Should we perhaps be “a little bit more bolshie” about getting a broad-based, US-style fair use exceptions.

A: (Helen) There’s much more of a push for this now, and it’s still a live issue.

Educational Online Copying

Delia Browne

Director, National Copyright Unit

  • AU is one of the few countries that has compulsory licensing for educational use. [@piecritic: “We pay for education use unless the website exempts it. What the hell. #adaforum Photocopiers did this to us.”]
  • We want materials excluded that are made freely and publicly available on the Internet – not commercially available, and not password protected. Not talking about getting exceptions for subscription services or password-protected services.
  • AG’s office wants the National Copyright Unit to try to work out an agreement with key stakeholders, eg. Australian Copyright Council, schools, authors’ groups. Some good did come from this: everyone agrees that schools shouldn’t have to pay for content made freely available without expectation of payment. Some issues with how to actually implement this, though. Legislation or other measures?
  • Arguments against legislation: (made by CAL [?])
    • a changing environment: changes to legislation will confuse authors and others.
    • Legislation may limit publishers’ and authors’ ability to experiment with new business models.

[CAL seems uncooperative.]

  • Trying to contact website authors individually is not an effective process.
  • Concern that Part 5B being extended online means a market is being created where one didn’t exist before.
  • We may have little option but to start limiting student access to the Internet.
  • We’re not trying to avoid paying for content that website authors are actually trying to commercialise.
  • Part 5B was never intended to create an alternative business model.
  • If a person has taken steps to exploit their work, then multiple copies by schools could interfere with sales, and remuneration should be given. But if no steps have been taken, then schools should be able to make use of the content.

Orphan Works

Emily Hudson

TC Beirne School of Law

  • In discussions of orphan works, not enough attention to mechanisms for losing ownership. The assumption that copyright owners can resurface after several years and reassert rights is problematic.
  • Discusses several potential solutions to orphan works problems.
  • Strange to think that copyright owners who don’t take any steps to protect or enforce copyright for years can reassert ownership. Could potentially solve this by treating IP more like real property. [May have possible unintended results?]
  • We need to divorce questions of copyright term from ownership.
  • Recognising a doctrine of abandonment may only be useful for recognising a subset of orphaned works.
  • Abandonment, estoppel, and other laws might be helpful here.
  • Many proposed reforms focus on good faith and conduct of the user. One question: whether more focus should be put onto the conduct of the copyright owner.

Robyn van Dyk

Australian War Memorial

  • AWM looking to web publish selections of unpublished works in the collection, from WWI.
  • Collections of diaries, letters, etc. Many donated to the AWM. Copyright holders: Bean (?) family estates, but also estates of letter authors that are difficult to find.
  • Removing letters where copyright is hard to determine problematic:
    • It means sharing an incomplete collection,
    • Will therefore need to keep sharing physical items, making them harder to preserve.
  • Therefore sharing it all under 200AB. (?)
  • To follow: Birdwood estate collection. Another collection, in which papers will be treated individually rather than as a collection.
  • In many cases, it’s a waste of taxpayers’ money to try to find authors/copyright holders.
  • We need to publish material electronically in order to preserve it, as it’s getting heavy use.

Matt Dawes

Australian Digital Alliance

  • Key tenet of copyright: it exists for a limited work.
  • Need a mechanism to use orphan works that are still in copyright.
  • 3 step test not designed to guide exceptions.
  • AU could use the 3 step test to draft an exception for using orphan works.
  • Issues:
    • what constitutes ‘reasonable inquiries’ about copyright holders for works assumed to be orphaned works?
    • How to allow scalable searches? (eg. Looking at a few works in a collection to determine whether the collection as a whole can be counted as orphaned).
  • Need to protect users who make reasonable inquiries but are faced with the unexpected reemergence of rights holders.


  • Interesting point raised: putting stuff online when it was initially written for private consumption, not public. (Eg. Writing a diary in a trench during WWI – not meant for publication.)

In conclusion…

Kim Weatherall

  • We need to think about producer interests as well as user interests.
  • We should be willing to ‘get bolshie’ rather than always taking a risk management approach.
    • Government should take a robust approach to negotiating international negotiations.
    • We need more strategic thinking about how to push boundaries within institutions.
  • Government approach is that it’s not just about legislation.
  • The user community is not as organised or coordinated as it needs to be.


Our challenges:

  • How to develop reform proposals that:
    • are persuasive, targeted, and relevant,
    • will persuade government that our concerns matter and require government action,
    • are relevant: make sense within the constraints of international treaties.
  • More broadly:
    • We’ve been thinking about legislation, but there are other option. Possible issues here with fragmentation and/or non-representation.


Ideas on what’s coming – quite a long list! Hopefully Kim will be putting this up elsewhere :)

> We’re going to have to get coordinated in responding to all of this.

  • A handy table: what’s coming up, and what practical steps might be required?
  • Ideas on submissions, how to coordinate and communicate.
  • One aspect: how to facilitate risk management approaches.


Australian Digital Alliance (part two)

Safe Harbours

Charles Alexander (Chair)

Ishtar Vij

Tom Joyce

Paula Bray

Charles Alexander

  • Safe harbours in AU only cover ISPs, not other service providers.

Ishtar Vij

Public Policy and Government Affairs


(opens with a revision of massive growth of the Web.)

Google wants to allow for sharing and remixes while respecting content creators’ rights.

YouTube Play: “a celebration of the best creative videos on the web, curated by the Guggenheim.”

map my summer

Beached whale.

Safe harbours necessary.

Content owners need good processes for enforcing their copyright online.

Users need easy ways to challenge takedown notices.

Service providers will be able to avoid financial penalties as long as they comply with safe harbour provisions.

Existing copyright regimes lead to uncertainty and risk.

AU’s existing safe harbour scheme should be changed to become more technology neutral.

This would be in line with government policies:

  • growing the digital economy, powered by the NBN.
  • promoting the development of innovative online services.

Tom Joyce

University of Queensland

  • For many years, unis have acted as service provided. We deal with hundreds and thousands of students, who we have very little control over.
  • Unis have been acting as if they were carriage service providers – managing relationships between content providers and users (students) – but without the equivalent protection.
  • We’ve had examples at UQ where we could have faced substantial penalise for, for example, large volumes of illegal software downloads.
  • Our capacity to know what’s happening on our networks is limited, but we’re doing our best.
  • Issues with people not wanting to use resources they’re not 100% confident about.

Paula Bray

Powerhouse Museum

Manager, Visual and Digitisation Services

  • We constantly have to take risks in what we do.
  • One of the first museums to start putting content online.
  • Putting material up under CC licenses.
  • Hackday at the museum using the Powerhouse API: 13 projects up!
  • Trying to be an open museum: open access.
  • Barriers: issues with licenses when material is handed over.
  • We use: vimeo, flickr, etc.
  • Releasing content that’s out of copyright to the Flickr commons.
  • Some awesome results of releasing material: google mashups, augmented reality mobile apps (eg. Go to physical site, will show you old photos), partnerships with ABC.
  • Want to reduce fees to the education sector.
  • This is publicly funded material, it should be publicly avalaible.
  • Managing risks on a case-by-case basis.
  • Material should be shareable and findable (and accessible in other ways).

Q: why is AU’s safe harbours provisions limited to carriage service providers (ISPs) only?

A: (Helen): it was expedient, due to telecommunications act, needed to implement US agreement provisions quickly. With more time, it probably would have been done differently.

Q: (Kim Weatherall) There is an intention to deal with the safe harbours provisions – there’ll be a consultation paper, we’ve heard that all service providers should have access to safe harbours provisions – what do others think of this?

A: (Tom Joyce) The heat in copyright discussions is a problem – it goes on endlessly, there’s an ongoing schism. We need to look at service providers’ capacity to control. If service providers can’t control users, they should have a shared responsibility. Need a clear path for copyright owners to register their issues. There seems to be an attitude in AU…copyright owners feel disenfranchised. Copyright owners need to feel like there’s a process.

A: (Charles Alexander) Isn’t this one of the issues: there’s a narrow scheme, and they still can’t get agreements with ISPs?

A: (Ishtar Vij) We need to think about what’s practical as a response to copyright infringement complainst. Eg. Can only take down material if you’re hosting it. Issues with peer-to-peer networks – not hosted by carriage service providers.

IiNet Case

Graham Greenleaf (Chair)


Anne Flahvin

  • Cowdroy: just providing access to the Net isn’t allowing copyright infringement.
  • Copyright owners have been suggesting that there’s now guidance on how to get ISPs to terminate customers.
  • Emmett: Copyright owners would have needed to provide unequivocal, cogent information about copyright infringement.
  • Some very real issues with graduated response schemes.
  • Emmett: in order to shift the burden to ISPs and suggest they haven’t taken reasonable steps, copyright owners need to take on costs for finding infringing content, maintaining the takedown regime, and take on costs for liabilities involved in terminating clients.
  • Nicholas: silent on the question of requirement to pay the cost of the takedown process. If an allegation by a copyright owner requires further investigation, refusal to take further steps doesn’t imply that the ISP has failed in their obligations.
  • Not surprising that the full court abandoned Cowdroy’s approach in the initial decision. A good policy approach, but not legally.
  • A reasonably high burden on copyright owners to document and modify infringement.


Tom Cochrane


  • Duty of care balance.
  • Moorehouse case? Provision of the ability to make copies does, to some extent, render the provider liable to charges of facilitating infringing behaviour. However, no radical outcome of this.
  • Cumulatively, millions of dollars spent on licensed material through QUT. Have had to develop a framework for this, just as the government has.
  • A serious level of concern about more serious issues, eg. Hacking from QUT facilities and other illegal activities.
  • A lot of effort around reasonable duty of care about use of QUT’s IT facilities – around $30million a year.
  • We note that the appetite for litigation: holding large institutions more liable than they already are.


Anna George

Murdoch University

  • previously involved in the WTO.
  • Governance is a key issue.
  • Very little understanding of copyright issues in the general public.
  • When general public understands, they are likely to be appalled.
  • Stakeholders were there during consultations with the WTO, took money for projects, then supported negotiations. [Seems rather irate: feels stakeholders failed during negotiations?] We need AU public policy for the AU public good.
  • Serious issues with WIPO international collection society.
  • TRIPS led to globalisation of IP. Universities did not respond by looking at the consequences. (only the law departments, which benefited as more students want to study IP now.) Only a few departments now understanding this, and the links with international political economy.
  • iiNet: the battle is ongoing in terms of where we go from here.
  • We haven’t yet seen the full force of the US FTA. Have been told it’s a framework agreement, no need to change legislation. We’ll see.
  • Copyright societies want more action from our judicial, police, resources, etc. Competing with other uses.
  • US FTA has not been implemented as harshly as it might be in the future. We can implement it cleverly, or it can be rabidly implemented. Will depend in part on lobbying groups.
  • Don’t really know yet how ACTA will play out.
  • Leaked EU memo from James Love: worth looking at!


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.