1.Professor Anne FitzgeraldQueensland University of TechnologyCreative Commons and the Digital Economy Seminar 1 of 45 October 2012

2. This session Copyright What Creative Commons (CC) is Overview of how CC is being used 3. Copyright Governed by the Copyright Act (Cth) No registration required Copyright exists automatically once criteria in the Actare satisfied Copyright protects original expression Not ideas, information or facts But the form in which those ideas, information or factsare expressed 4. Blogs, books, articles, essays(literary works, published editions of works)Generic 2.0 _MG_0318 by Zitona, http://www.flickr.com/photos/zitona/5021203226/ 5. Photographs, paintings,images, sculptures(artistic works)Generic 2.0 take the old machine by Angelo Gonzlez, http://www.flickr.com/photos/21251150@N04/5291456294 6. Music, sound recordings,radio broadcastsGeneric 2.0 I Giovani e la Musica by Super UbO, http://www.flickr.com/photos/14443853@N07/5362778675 7. Films, Videos, Theatre,TV broadcasts(cinematograph films, dramatical works, television broadcasts)Generic 2.0 Apollo 11 Video Restoration Press Conference / Newseum by NASA Goddard Space Flight Centre, http://www.flickr.com/photos/24662369@N07/3726614425 8. Copyright as a bundle ofexclusive rights For example, for literary, dramatic and musical works the rights are to: reproduce in material form publish publicly perform communicate to the public in electronic form transmit; make available make an adaptation or translation control rental, where work is a computer program or isreproduced in a sound recording: s 31(1) 9. Copyright in the digitalenvironment Broad scope of copyright law extended in the digitalenvironment Broader range of materials subject to copyright (eg computer programs) Broader rights (eg right to communicate electronically to the public) When we use digital technology, we automaticallyreproduce content and thereby enter the copyright zone,because digital technology needs to reproduce material soit can be played, run or even viewed. Copyright has been further extended to protect Technological Protection Measures (TPMs) (eg encryption/anti-copying devices) applied to control access or copying; Electronic Rights Management Information (ERMI) 10. Unless the law provides otherwise Fair dealingresearch or study (s40)criticism or review (s41)parody or satire (s41A) reporting of news (s42) legal advice (s43)Generic 2.0 That time of year again by Etwood, http://flickr.com/photos/etwood/231364920 11. But is the dealing fair? "(i) Fair dealing involves questions of degree andimpression; it is to be judged by the criterion of a fairminded and honest person, and is an abstract concept; (ii) Fairness is to be judged objectively in relation tothe relevant purpose, that is to say, the purpose ofcriticism or review or the purpose of reporting news;in short, it must be fair and genuine for the relevantpurpose TCN Channel Nine Pty Ltd v Network Ten Pty Limited [2002]FCAFC 146 (22 May 2002), [98] per Hely J 12. CopyrightIn a nutshell copyright automatically applies to a lot of material exclusive rights of the copyright owner are very broad remedies are strong and enforcement is effective(through civil and criminal actions) limited exceptions are availableWhich means that..... the consequences of infringement will deter use/reuseunless it is clear that the use is permitted 13. Copyright General rule = You need permission/licence toexercise exclusive economic rights of copyright ownerunless the law provides otherwise express permission to use should be obtained importance of clear statement of permitted uses any other rights/obligations (other than copyright) alsoneed to be considered 14. all rights reserved 15. Creative Commons 16. What is Creative Commons? a standardised system for licensing the use ofcopyright materials a suite of 6 standardised licences available in 3 forms: plain english (summary); legal codeand machine-readable code Each licence grants baseline permissions to users touse 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 17. Creative Commons IS NOT anti-copyrightCreative Commons IS A copyright licence (permission) Cannot exist without copyright A new way of managing copyright Free for everyone to use 18. Copyright licensing traditional practice All (or most) rights reserved Requires prior permission from copyright owner unlesswithin an exception to owners rights (e.g. fair dealing)under the Copyright Act Negotiating terms is cumbersome, time consuming,expensive inefficiency means high transaction costs Has led to multiple non-standard licences Problem of orphan works no identifiable copyrightowner from whom permission may be obtained Arose from pre-internet era - not geared to the immediateand global nature of the internet 19. Copyright licensing with CC licences Some rights only reserved Relatively short, simplified, standardised licences which provide permission in advance Do not contain detailed provisions covering all relevant aspects of the law Must be read in the context of copyright law (legislation & judgments) and often other relevant bodies of law (e.g. private international law jurisdictional issues and applicable law) Also have to be read in context of other relevant information laws notably privacy (data protection), security, and interception of communications (telecommunications) - See Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009) 20. CC is a copyright-based system oflicences or permissions Copyright law gives copyright owners the rights to authoriseothers to use their materials permission to do specific acts Authorisation or permission is granted in licences Non-exclusive licences can generally be written or unwritten,explicit or implied from the circumstances Some permissions have been generalised and codified asexceptions in the Copyright Act e.g. fair dealing Not yet possible to codify the permissions for many kinds of usesof copyright material particularly the case for public sectormaterials The CC licences provide a simple way of granting permission touse copyright materials, to overcome uncertainty but do notcover all possible kinds of permissions other kinds ofpermissions will have to be negotiated 21. CC licences are based on copyright Preamble: THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENCE ("LICENCE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. Definitions "Work" means the material (including any work or other subject matter) protected by copyright which is offered under the terms of this Licence. This may include (without limitation) a literary, dramatic, musical or artistic work; a sound recording or cinematograph film; a published edition of a literary, dramatic, musical or artistic work; or a television or sound broadcast Includes: Copyright economic rights Performers ownership rights in recordings Moral rights remain unaffected to the extent they are recognised andnonwaivable at law. 22. Rethinking the Commons Public domain traditionally referred to materials notsubject to copyright protection because copyright had expired; or the materials did not quality for copyright protection. Concept of public domain has been recast more broadlyto mean open knowledge and content 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 23. Free and Open Source software/open contentconcepts Openness (access/use/reuse) has to be structured / constructed - itdoes not happen by default - requires copyright and otherinterests to be actively managed to ensure the desired level ofopenness is achieved For intangibles / digital materials, law provides the means ofstructuring openness Creative Commons draws on Richard Stallmans insights into howcopyright can be used to ensure that freely distributed software sourcecode remains open to other software coders (FOSS, GNU GPL); DavidWileys thinking around Open Content; and Elinor Ostroms work onregulation of commons Absence of legal rights means just that (nothing) if legal rights do notexist, the only control is through lock up (secrecy) or lock down(technological locks) counterproductive to achieving openness 24. Licence combinations 25. Baseline permissions Fundamental baseline rights granted by all CC licences: Reproduce Distribute Publicly perform Additional baseline permission granted in four of the six CC licences to create derivative works and Reproduce Distribute Publicly perform the derivative work 26. CC Core Conditions of useAttribution (BY) attribute the author, and no false attribution[Mandatory]Non Commercial (NC) no commercial use (as defined)No Derivatives (ND) no changes allowed to original workShare Alike (SA) changes allowed, but new work is to bedistributed under the same licence as the original work* ND and SA cannot be used together 27. Human-readable summary 28. Legal Code 29. Machine-readable codehttp://creativecommons.org/choose/ 30. CC operates as a direct licence,from copyright owner to user 31. Attribution (BY) 32. Attribution (BY) Copyright notice - Keep notices that refer to theLicence or Disclaimers Name of author and other Attribution parties Source and Title of the work Licence URL/hyperlink In a Derivative Work, identify the changes made to theoriginal No suggestion of endorsement In a manner reasonable to the medium you are using 33. Attribution (BY) 34. http://creativecommons.org/choose/ 35. Non Commercial (NC) 36. Non Commercial (NC) Commercial defined as meaning primarily intended for or directed towards commercial advantage or private monetary compensation 37. Meaning of Non Commercial CC has released guidelines and done a study on the meaning of this term. there are some clear cases of what is non-commercial(private and domestic) use some clear cases ofcommercial use (corporations using the material togenerate revenue) See: Defining Noncommercial: A Study of How the Online Population Understands Noncommercial Use, http://wiki.creativecommons.org/Defining_Noncomm ercial 38. Adam Curry v Audax (2006) Curry uploaded photos to Flickr under a CC BY NC SAlicence The photos from Flickr were reproduced in a magazinesold commercially in The Netherlands Court held there was no permission to use the photos -as this was commercial use only Non Commercialwas licensed 39. No Derivative Works (ND) 40. No Derivative Works (ND) Derivative Work" means material in any form that is created by editing, modifying or adapting the Work, a substantial part of the Work, or the Work and other pre-existing works. 41. No Derivative Works (ND) Derivative Works may include a translation,adaptation, musical arrangement, dramatisation,motion picture version, sound recording, artreproduction, abridgment, condensation, or any otherform in which the Work may be transformed oradapted except that a Collection will not be considered aDerivative Work for the purpose of this Licence. 42. Share Alike (SA) 43. Share Alike (SA) Clause 4B(a) Attribution-Share Alike 3.0 Australia: You may only Distribute or publicly perform a Derivative Work if You apply one of the following licences to it: i) this Licence; ii) a later version of this Licence with the same LicenceElements (such as Attribution-ShareAlike 4.0 Australia); oriii) a Creative Commons Unported licence or a licence fromanother jurisdiction (either this or a later version) that has thesame Licence Elements; oriv) a Creative Commons Compatible Licence. (* note this lastoption is not available in CC BY NC SA 3.0 Australia) 44. How do people use CC? Licensing out: use CC on copyright materials you create enable others to find your material online through using the standard search engines; give permission to others to lawfully use your material (eg copy, on-distribute, post to a website, value add, mashup e.g. Repositories Wikipedia, Flickr, YouTube Institutions/Organisations ABC, Al Jazeera Licensing in: use copyright materials created by others thatare licensed under CC enable you to find their material online through using the standardsearch engines; give permission to you to lawfully use their material egcopy, on-distribute, post to a website, value add, mashup e.g. use of CC licensing scream in Children of Men (a Hollywood film) students using CC material in their projects In both cases, the scope of re-use will depend on which CC licenceselected 45. CC BY SAMost of Wikipedias text and many of its images are dual-licensed under the Creative Commons Attribution-Sharealike 3.0 Unported License (CC-BY-SA) and the GNUFree Documentation License (GFDL)The small print: Text is available under the Creative Commons Attribution-Share Alike License; additional terms may apply. See Terms of Use for details ....Information for text contributors to WikimediaprojectsTo grow the commons of free knowledge and free culture,all users contributing to Wikimedia projects are requiredto grant broad permissions to the general public to re-distribute and re-use their contributions freely, as long asthe use is attributed and the same freedom to re-use andre-distribute applies to any derivative works. Therefore,for any text you hold the copyright to, bysubmitting it, you agree to license it under theCreative Commons Attribution-ShareAlike 3.0Unported License. For compatibility reasons, you arealso required to license it under the GNU FreeDocumentation License. Re-users can choose the license(s)they wish to comply with. Please note that these licensesdo allow commercial uses of your contributions,as long as such uses are compliant with theterms.As an author, you agree to be attributed in any of thefollowing fashions: a) through a hyperlink (where possible)or URL to the article or articles you contributed to, b)through a hyperlink (where possible) or URL to analternative, stable online copy which is freely accessible,which conforms with the license, and which provides creditto the authors in a manner equivalent to the credit givenon this website, or c) through a list of all authors. (Any listof authors may be filtered to exclude very small orirrelevant contributions.) 46. Trade Adjustment Assistance Community Collegeand Career Training Grant Program (TAACCCT):US $2 billion in funding provided under federal educationfund to create OER resources for use in community collegesP062311PS-0339 by The White House (US Government Work) http://www.flickr.com/photos/whitehouse/5937200216 47. AUSTRALIA 48. AUSTRALIA 49. 2010 Federal BudgetPapers licensed under CCAttribution 2.5Australia 2011 and 2012 FederalBudget Papers under CCAttribution 3.0 Australia 50. In 2009 the Al Jazeera Network launched a repositoryof broadcast quality footage under a variety of CClicences Initial focus was on footage of the conflict in Gaza,which was released under a CC BY licence. The aim of allowing the broadest possible reuse(including commercial use) was to make people moreaware of these issues as well as profiling the Al JazeeraNetwork throughout the world. See Al Jazeera CC Repository at http://cc.aljazeera.net/ 51. ABC 80 Days that Changed our Lives To celebrate ABCs 80th anniversary , ABC released 22 files capturinghistoric moments on Wikimedia under CC BY-SA first collection of broadcast packaged footage released to WikimediaCommons under a free license 52. http://en.wikipedia.org/wiki/History_of_the_Internet 53. May 2012 3 months on http://toolserver.org/~magnus/baglama.php?group=Files+from+the+Australian+Broadcasting+Corporation&date=201205 54. Wikimedia What is Wikimedia Commons? Wikimedia Commons is a media file repository making available public domain andfreely-licensed educational media content (images, sound and video clips) to everyone, intheir own language. It acts as a common repository for the various projects of theWikimedia Foundation, Launched on 7 September 2004, Wikimedia Commons hit the 1,000,000 uploaded mediafile milestone on 30 November 2006 and currently contains 13,546,116 files and 106,660media collections. Unlike traditional media repositories, Wikimedia Commons is free. Everyone is allowed tocopy, use and modify any files here freely as long as they follow the terms specified by theauthor; this often means crediting the source and author(s) appropriately and releasingcopies/improvements under the same freedom to others. The license conditions of eachindividual media file can be found on their description page. The Wikimedia Commonsdatabase itself and the texts in it are licensed under the Creative CommonsAttribution/Share-Alike License. More information on re-use can be found atCommons:Reusing content outside Wikimedia and Commons:First steps/Reuse. http://commons.wikimedia.org/wiki/Commons:Welcome 55. Legal Validity of LicencesJacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)Copyright holders who engage in open sourcelicensing have the right to control the modificationand distribution of copyrighted material. .The choice to exact consideration in the form ofcompliance with the open source requirements ofdisclosure and explanation of changes, rather than asa dollar denominated fee, is entitled to no less legalrecognition. 56. Why use CC licences? Other standardised licences e.g. UK Open Government Licence(OGL) are not fully internationally recognised Permits international platforms (collaborations andcontributions across various sectors) No other standardised licence has an equally supportive andviable central organisation CC applies to all government and non-government copyrightmaterial (except software) CC uses icons (which have gained full international recognitionand which are not language specific) CCs licence metadata / digital code is embedded, making itmachine-readable, searchable & retrievable CC provides for a clear statement about the source of the data(attribution/provenance) increased user confidence 57. CC Australia More information at www.creativecommons.org.au Twitter: @ccAustralia Facebook: http://www.facebook.com/ccAustralia Professor Anne Fitzgerald Publications:http://eprints.qut.edu.au/view/person/Fitzgerald,_Anne.html Twitter: @AnneMFitzgerald