OctaviaNet

New blog

2010-02-14T10:18:00.002+10:00

Now that I have started my PhD, I plan (hope) to be blogging a lot more from now on. I have a shiny new blog to celebrate this occasion - the new address is: http://kyliepappalardo.net. If you use RSS to subscribe to this blog, you will need to change your subscription to the new address. Thanks!

Some updates

2010-02-12T10:27:00.002+10:00

So I have fallen a bit behind in my promised extended discussion of the iiNet case. I'm halfway through the full judgment, but have unfortunately been sidetracked with some other work-related tasks.

There has been no shortage of interesting copyright judgments in the last week. In addition to the iiNet decision, there has been the decision of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 (where the band Men At Work was found to have infringed Larrikin's copyright in the children's song 'Kookaburra Sits in the Old Gum Tree', by using the flute riff in their famous 'Down Under' song), and on Monday, in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44, a single judge of the Federal Court held that copyright does not subsist in Telstra's Yellow Pages and White Pages directories (choosing to follow IceTV rather than Desktop Marketing).

These are all important decisions, and I have every intention of getting to them (for reading and blogging in detail) as soon as I can. In the meantime, if you are interested in reading some updates and discussions, I'd recommend viewing Nic Suzor's blog on the iiNet decision (1, 2, and 3) and Warwick Rothnie's post on the Telstra decision.

EFA submission on minimum legitimacy requirements for mandatory internet filering

2010-02-12T10:17:00.004+10:00

The Electronic Frontiers Australia (EFA) submission to the Australian Government Department of Broadband, Communications and the Digital Economy (DBCDE) on what measures would be needed to make mandatory online filtering legitimate, particularly from a transparency perspective, is now available online. You can view a summary or download the submission in PDF from the EFA website.

I am happy to say that I played a small role (together with Nic Suzor and Irene Graham) in putting this submission together. I hope that it will have some impact in helping to make the proposed filter (if it is indeed implemented) more transparent, and as a result, the government more accountable to the Australian people as far as internet filtering goes.

iiNet prevails in Federal Court

2010-02-04T10:02:00.003+10:00

Justice Cowdroy of the Federal Court today handed down his judgement in the Roadshow Films Pty Ltd v iiNet case.

The case involved a number of film studios who had sued iiNet, an internet service provider, for authorising the copyright infringement of its users. Their argument was that some of iiNet's users were infringing copyright by downloading movies and TV shows via a BitTorrent service; that iiNet knew this was going on; and that iiNet failed to do anything about it. The question for the court was whether iiNet was authorising the copyright infringement of its users by failing to take any steps to stop the infringing conduct.

In a decision that has been celebrated all over the internet this morning (especially Twitter), Justice Cowdroy held that iiNet was not authorising copyright infringement. The Justice gave three reasons his decision:

the infringements occurred as a result of use of the BitTorrent system, not the internet, and iiNet did not control the BitTorrent system;
iiNet did not have a relevant power to prevent the infringements occurring; and
iiNet did not sanction, approve or countenance copyright infringement.

In the summary of his judgement (which I have had the good fortune of reading), Justice Cowdroy made the following important statement: "I find that the mere provision of access to the internet is not the 'means' of infringement".

The judge found that a scheme for notification, suspension and termination of customer accounts is not a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act. The judge's reasons for this finding are set out in the main judgement, which I have not yet had a chance to read. I hope to do this later today and provide updated comments shortly.

Justice Cowdroy also found that iiNet did have a repeat infringer policy that was reasonably implemented and that iiNet would therefore have been entitled to take advantage of the safe harbour provisions of the Copyright Act. However, because the judge found that iiNet did not authorise infringement, iiNet did not need to rely on the safe harbours.

Nic Suzor, Associate Lecturer in the Faculty of Law at QUT and Chair of Electronic Frontiers Australia has further comments and analysis here and here.

I think this is a fantastic result and I am happy that common sense has triumphed.

The main judgement is available here. It is almost 200 pages. Happy reading!

(Updates will follow once I have read the full document myself)

Government 2.0 Taskforce report(s)

2010-01-06T14:56:00.003+10:00

This post is hugely late, but I've only just realised that I never actually posted notice of the Government 2.0 Taskforce final report, or the project report that I did with Professor Anne Fitzgerald for the Government 2.0 Taskforce.

So, without further ado, here are the relevant links:

The final report of the Government 2.0 Taskforce, entitled, "Engage: Getting on with Government 2.0" (December 2009) is available here. The report makes a number of important recommendations, including:

Recommendation 6: Make public sector information open, accessible and reusable
6.1 By default Public Sector Information19 (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 re-use and adaptation, PSI released should be licensed under the Creative Commons BY standard as the default...

The Government 2.0 Taskforce commissioned a number of projects to assist them with examining various areas of policy relating to their government 2.0 agenda. I assisted Professor Anne Fitzgerald with Project 4: Copyright Law and Intellectual Property. Our project report is available here. Here is the summart of the project report, as provided on the Government 2.0 Taskforce website:

Professor Anne Fitzgerald examined the broad policy rationale for copyright in relation to public sector information and found that there is a strong case to realign Commonwealth copyright policy based on the principles of open access and re-use which would facilitate complex flows of information between and within the public and private sectors. The report stated that this could be achieved without the need for significant changes to copyright legislation by repositioning crown copyright to enable rather than restrict re-use; adopting copyright management practices appropriate to the Web 2.0 environment (e.g. standardised open licenses which provide clear statements of users’ permissions); and providing clearer guidance to agencies about the use of open licenses, and the meaning of ‘publication’ in the Copyright Act.

Conroy's Con - the new grass-roots campaign against the Government's mandatory internet filter

2009-12-23T09:18:00.003+10:00

On Monday 21 December 2009, I attended the Brisbane Stop Internet Censorship Public Meeting. The meeting was organised by Nicholas Perkins and had a fantastic turnout - close to 90 people! There is clearly a lot of interest around this issue.

The meeting was focused on what we can do to get the message out about Conroy's mandatory filter and the negative impacts it will have. Mainly, that the filter will NOT stop child pornography or protect children from the dangers that lurk online (including online predators and cyber bullying) but it DOES pose a serious risk of political censorship.

It was generally agreed that at present, we are losing the great internet filter battle. Conroy has used strong rhetoric that casts anyone who opposes the filter into the role of child pornographer (or at least, supporter of child pornography). Further, we are not aided by our own "geekiness" - as tech-savvy Twitteratti, we do not appeal to mainstream Australia who may not know what a "feed" is, let alone the significance of the "clean feed" proposal.

So what can we do?

The answer is a lot. But we need to do it fast, and we need to apply a lot of pressure consistently. We need to reach both the pollies and the general Australian public, and we need to turn this debate around soon or the battle is lost for good.

The Stop Internet Censorship meeting had two speakers, each of whom presented compelling options for moving forward. Each speaker took a completely different approach, but I believe that both approaches can be effective and if we apply them together, even more so.

Nicolas Suzor from Electronic Frontiers Australia spoke first and outlined the importance of keeping this debate rational. He argued that we shouldn't get sidetracked on issues of speed. The most important issues relate to censorship and control, and the fact that the RC list has a far wider ambit than child porn. Nic stated that the most effective thing we can do in terms of reaching the politicians is letter-writing. Many MPs do not really have a clear idea of what this debate is about. We should inform them and make our case. Write, write write! EFA has provided a template on their website, if you are not sure what to write.

Nic also highlighted the Great Australian Internet Blackout, an online protest that runs from 25th - 29th January, in which you can blackout your online profile picture and/or website to protest against the filter. Additionally, Michael Meloni of Somebody Think of the Children has developed a website called The Gift of Censorship, which allows you to leave a short (500 characters or less) message for Stephen Conroy. For every 1000 messages sent, Michael will send a Christmas stocking of coal to the Senator.

Finally, Australia Day is the national day of action for this debate. EFA are asking you to spread the word about what the filter really means for Australians, by bringing it up at your Australia Day Party.

The next speaker was Cameron Reilly, who spoke about the propaganda techniques that Conroy has used to swing the debate his way. Sometimes, you need to fight fire with fire, and in addition to the more reasoned approaches above, we may need to develop our own propaganda techniques. We need to bring this issue to the masses.

Andrew Bartlett suggested "Conroy's Con" as our slogan. More meetings will follow to discuss what techniques we can employ to show mainstream Australia that this filter is not what Conroy promises. Importantly, we need Mums and Dads, family groups and church groups on our side.

To find out more about the next meeting, visit http://www.stopinternetcensorship.org/

Videos of the December meeting have been posted on YouTube.
You can see Nicholas Perkins speaking here
Nic Suzor is here
Cameron Reilly is here and here

and the public debate is here, here and here

You can also see the Twitter feed from the night by searching for #sicbne

I think my blogging is over for the day... #bbfqld

2009-12-10T15:32:00.001+10:00

We are engaging in general discussion now in Brisbane, which probably means it is easier to follow this via Twitter, rather than me trying to follow it all.

So, I guess this is where I sign off.

Phew! It’s all over! Live blogging is exhausting – not to mention trying to keep track of the twitter feeds, the Google Wave discussions and all the other activity going on! There has been a hive of activity here in Brisbane and I can only imagine the same (or more) has occurred in Sydney.

I think the Brisbane forum has been very successful and thank you to everyone who attended, whether in person or online. I’d also like to extend thanks to the wonderful speakers on the program today, Prof Anne Fitzgerald and Paul O’Keeffe for organising the forum, Pia Waugh, Senator Kate Lundy and our friends at the main forum in Sydney, other members of our research team – Elliott Bledsoe, Jessica Coates, Cheryl Foong and Jimmy Ti – for helping with taking notes, making tweets and taking photos, and finally Patrice Meixsell-Draper and the QUT AV services and technical services teams for assisting with the venue, wireless connectivity and audio recording of today’s events.

Brisbane forum #bbfqld - Stream 5: e-Community

2009-12-10T15:25:00.002+10:00

The final stream (Stream 5 – e-Community) was facilitated by Fee Plumley of the Australia Council for the Arts.

Fee described the Geeks in Residence program that the Australia Council is running – putting “geeks” within arts organisations to help them with their digital agenda.

The Geeks in Residence program is interested in three things:

What innovation can take place around artistic programming?
Audience development (marketing through digital – but this needs to be done strategically – must build community of users within the organisation) – need cultural change within the organisation – staff are taught to use networking in a productive way
General operations – something often overlooked in terms of how technologies can improve productivity

Fee also made the point very well that it is important to have clear and sensible policy around use of social networking in the workplace. You must let your staff engage with and network with their communities online. Talking about their work with passion to others is just as important as the actual work. Passion spreads the message further.

Discussion then turned (very strongly) to copyright. Fee made the following arguments:

The first thing we must do, alongside the NBN, is to re-examine the copyright system. All we have currently is blockades, because the old organisations are just working to preserve old industry and old business models. This may rock the boat – but the boat needs to be rocked.

We need to get Creative Commons, APRA, MEAA, whoever, to work together – to try a number of case studies of business and copyright models with difference content and different audiences – to see what happens. Sick of hearing “it can’t be done” and closed doors – let’s do it as an experiment! If at the end, the best answer is to shut down the process and fiercely protect the copyright, then “I will shut up”. We need to let new business models develop. We must demand that even though we are small and niche (“the arts”), we have an important part within the economic system. We need knowledge investment. We must question why we accept models from the past.

Other debate –

Fee Plumley: Artists need to stop feeling bad about asking for money. The subsidising system makes artists feel like beggars.

Elliott Bledsoe: Similarly, artists need to stop expecting other people (intermediaries) to ask for money for them.

Fee Plumley: There must be a balance across the whole space. We don’t just want commercially-driven art

Brisbane Forum #bbfqld - Stream 4: e-Business

2009-12-10T14:50:00.002+10:00

In the e-Business stream we had an overview of the Peer to Patent Australia Project from Professor Brian Fitzgerald. I'll let you see my earlier (more extensive post) for information about this project and I'd also encourage you to visit the website.

There was also some general discussion around some e-business issues, all of which were well covered via the twitter stream (#bbfqld) - so again, I will let you read the tweets there.

Brisbane Forum #bbfqld - Stream 3: Digital Education

2009-12-10T14:23:00.003+10:00

Stream 3 was on digital education.

First up was Linda Pitt, Manager, Discovery Programs, eLearning, QLD Department of Education and Training. Linda gave an overview of The Learning Place. I encourage you to check it out – they are doing some fantastic things.

The Learning Places works on the theory that a robust digital education infrastructure involves three limbs – digital pedagogies, digital content, and e-learning spaces. It is trying to give students a ‘real-world’ experience through online networks. It is encourage use of digital spaces (such as Second Life) and tools such as blogging. It helps to have people blog their teaching and learning experiences to share with others and grow from everyone’s experiences.

Some other points made by Linda:

Smart Classrooms not only need bandwidth they need access to trained facilitators that can show students how to learn online (via @MichaelSmale)

One of the biggest problems for the learning place is low bandwidth in most QLD schools – only have a small number of schools with definite broadband – this is poor

We want teachers to be able connect with experts out there, and we want teachers and students and students and students to be able to connect with each other, no matter where they are.

Second up was Professor Greg Hearn, ARC Centre of Excellence for Creative Industries and Innovation (QUT), Director Creative Workforce Program.

Main points made by Greg about new broadband technologies were:

There is potential for a major paradigm shift in education

We need innovation in all three layers (technology, content, social) to have real progress in education

Some provocations for education –

o Is the music industry a model for the education system? Do we need new business and content models? What is the disruptive innovation that will bring about a paradigm shift in education?

o Should bots (online games) be adopted as the new primary school classroom?

o How do we harvest and accredit web 2.0 learning?

o Which is a more important budget item – the teacher or the IT infrastructure? They are roughly 50/50 at the moment – what should we spend more on?

o Who will be the gatekeeper of the virtual classrooms (that have no boundaries)

o Which physical facilities still add value in the education process?

Greg then moved on to facilitating discussion around some specific discussion points.

We focused on the two later discussion points of those provided to us by the main forum:

(2) Reality Check – what is holding us back?

The digital literacy of the educators (may need retraining)

One of the key restraints in our current education = regression in the mean i.e. we need to tailor programs to the less able students. One of the big changes that broadband can offer is bringing experts closer to students and tailoring education to the individual.

How will we create the right environment for teachers to be able to handle multiple students using multiple technologies, at different levels and in different regions? – it will bust apart the system – it is a challenge – but we need to create digital support networks.

(3) Next steps – what needs to be done?

Why don’t we de-regulate the university curriculum and let students do the individual courses they want to take?

Individuals will be better catered for in an open system

Brisbane Forum #bbfqld - Stream 2: e-Health

2009-12-10T12:59:00.002+10:00

The second stream at #bbfqld was about e-Health.

The first presentation was from Alan Taylor, Director of Coeenet@qld, Radiology Informatics Program, Queensland Health.

Alan made the following points:

There will be a huge demand for e-Health applications, including for health records, health monitoring, video conferencing etc
Large investments in e-Health infrastructure will be needed.
There is absence of broadband competition outside the south-east corner of Queensland.
We need to understand the issues according to area and what are the issues for different people – health care providers, specialists, patients etc.
Health care needs a range of special security and privacy measures appropriate to the context of use.
Healthcare information needs a range of guarantees that information is available within stated timeframes
Health care traffic is symmetric. Asymmetric “residential” type services are not a good fit. Healthcare traffic requires “quality of service”
How will we know whether NBN is on track for healthcare needs? Questions to consider in assessing this – can we get competitive services throughout Queensland and can those services connect with each other? Can we get business grade services for health and government in both regional and metropolitan areas? Will the NBN services support symmetric traffic? Will there be sufficient bandwidth?

Importantly, Alan argued that we need to lobby for investment in Queensland. Funding for digital investment in regional areas absent in Queensland.

Alan also showed a video that demonstrated the different that technology makes to health in rural QLD. Crucially, it helps in making quick decisions about whether patients need transport to other facilities. It is about having up-to-date, accurate information, to make rapid, well-informed decisions. This enhances patient care.

The second speaker was David Hansen, a research scientist from CSIRO. David gave a number of thrilling examples of how CSIRO are using digital technologies in medical research – e.g. to map progression of Alzheimer’s, and many other things. I can’t really do the research justice by explaining in short-form here, but we will endeavour to make the slide set and audio recording available online soon.

General discussion report

Alan Taylor: We need the broadband, but we also need the smart people to get the right management of legal issues and proper business models to actually use the broadband and implement all the possibilities the broadband offers

Q: [Jessica Coates] How hard is training for people with digital technologies?

A: [David Hansen] – Generally you need a clinical champion to actually push the technology in the first place, but once people see the possibilities and how it all works, they generally get very excited about using it.

[Alan Taylor]: Most clinicians can see they need to do things better. Problem is knowing when they can use new technologies – will it save time and money? Will it expose them to risk of clinical malpractice?

Brisbane #bbfqld : Stream 1 - Smart Infrastructure

2009-12-10T12:14:00.002+10:00

The first stream to be considered in the Brisbane forum was Smart Infrastructure.

Associate Professor James Hogan from QUT's Science & Technology Faculty presented first. He started with a succinct but important quote from Microsoft: “It is not longer possible to do science without a computer”.

James spoke about some projects in his field - namely, how smart infrastructure is being used to measure environmental health. Digital instruments (similar to "smart phones") record environmental acoustics to "emulate scientific eyes and ears" in measuring environmental health. There are two such projects currently being undertaken - one to measure the sounds (and therefore the movements and health) of koalas at St Bee's Island, and another to measure the sounds of Lewins Rail (a type of bird) in the Brisbane Airport surrounds. Broadband helps to take this scientific data from the field and share it with others faster and more broadly, to have greater impact.

The second speaker in this stream was Lucy Cradduck, a lecturer in business law at the University of the Sunshine Coast and a SJD candidate in law at QUT.

Lucy made some important points about the challenges facing us in rolling out the national broadband network (NBN). These include:

Literacy: Access to information is about people being digitally literate – it is important that all people with capacity to access the NBN are fully digitally literate. If we do not have everyone able to understand, as well as everyone able to access, then we cannot move forward properly.

Physical infrastructure: New networks need to be constructed in infill (mainly urban and regional) and greenfield (mainly regional and rural). There are unique issues in greenfield sites, in particular cost and how the cables are going to be treated. Will they be treated the same as other utilities? There must be proper interoperability between old networks and new. Upgrading existing hardware and software needs to be efficient.

So what steps do we need to make in moving forward?

We need consistent policies across Australia on what must be provided for all not just Greenfield

Specific issues for rural and regional Australia must be addressed

- We cannot create an “underclass of the NBN have-nots”

We need to consider how to treat the cost of creating the network – who pays and when for access to the network?

[Note: I think (hope) that both James and Lucy's slides will be made available online in the next few days.]

Group discussion record

Q: What legal issues does the NBN throw up?

A: [Lucy Cradduck] One big issue is net neutrality – making sure that the NBN is open, that the content and system providers do not control what material we can have access to. Currently, Telstra controls most (if not all) of the internet exchanges. But moving forward, the NBN should be completely neutral so anyone can use it; anyone can gain access.

Q: So what are the key net neutrality issues we need to be aware of moving forward?

A: [Brian Fitzgerald] Part of the innovation of the internet means you don’t try to predetermine the uses of the internet. One of the critical issues around network neutrality is how strongly you enforce the requirement of net neutrality. And how far do we let people tinker with the internet to prevent copyright infringement or for censorship or for a range of other reasons.

Anne Fitzgerald: Law is part of the infrastructure and the interaction between law and technology is fundamental for access.

Brian Fitzgerald and others: The law could be more customised for more digital environments.

Extending broadband to rural Queensland #bbfqld #bbfuture

2009-12-10T08:49:00.001+10:00

In light of the comments that the Prime Minister, Kevin Rudd, has made this morning about extending broadband services across regional Australia, and linking broadband with economic growth and equality, I would like to share a comment made on the Brisbane forum website:

Graham Storrs said:
I live in rural Queensland. When I moved here 2 years ago, I had no phone line. It took a year and a complaint to the ombusman to get a line installed – at a cost to me of thousands of dollars. There is no ADSL of course, I’m too far from an enabled exchange.

I can get wireless ‘broadband’ via Telstra’s NextG service (no other supplier covers my house – so I’m in a monopoly market here) but the signal is weak (even with an external antenna) and the bit-rate is extremely low – so low that I can’t listen to streaming audio or watch streamed video without it stuttering and pausing all the time. And it is expensive, of course, being Telstra. The best package I can afford has a 5Gb upload/download limit – not enough to use every day and still have any spare for listening to music or watching video (even if I could). So, for $80 a month, I get a very basic, very slow service, and no option to change supplier.

Oh, and forget about smartphones like the iPod. They just don’t work at such low signal strengths (although, thankfully, my Kindle does – most of the time.)

Most city-dwellers, certainly no politicians, have a clue how primitive things are out here. Whatever the ‘broadband future’ is for urban Australia, for much of rural Australia, it’s a joke.

I must admit that as a "city-dweller" I had no idea things were this bad in rural Queensland. I do believe that fast internet = better opportunities for education, connecting with others, and much, much more. I have no knowledge about the physical logistics of extending quality broadband to rural Australia, but I do hope we can do something to improve the situation.

Realising our Broadband Future - Introduction #bbfuture #bbqld

2009-12-10T08:21:00.003+10:00

Today, I am at the Brisbane node (#bbfqld) of the Realising Our Broadband Future Forum (#bbfuture). I will be attempting to live blog the day, and add substantive points to the forum wiki throughout the day. There will be less need for me to blog this morning while, on the Brisbane program, we are simply watching the live stream from the main event. These events will be captured on video and, I'm sure, by the many attendees in Sydney. However, from 10:30am we will be facilitating our own discussions on the 5 streams (Smart Infrastructure, Digital Education, e-Community, e-Health, and e-Business) here in Brisbane, and I will be doing my best to capture those discussions. Apologies in advance if my notes are rather rough.

My colleague, Elliott Bledsoe, will be twittering the Brisbane event. You can following his Twitter feed directly, or follow the #bbqld stream.

Peer to Patent Australia launches today

2009-12-09T10:04:00.001+10:00

Today, 9 December 2009, the Queensland University of Technology (QUT) in collaboration with IP Australia launches the Peer to Patent Australia (P2P Au) project.

This project follows on from the Peer to Patent projects run recently out of the New York Law School (NYLS) and the Japanese Patent Office, and is designed to improve the patent examination process and the quality of issued patents.

P2P Au is led by Professor Brian Fitzgerald at QUT and is using Web 2.0 technology to assist patent examiners in their assessment of whether an invention is new and inventive and thereby deserving of the grant of a patent. With approximately 1 million patents being applied for across the world each year the task of examiners especially in assessing new technologies has become increasingly difficult. By harnessing the power of community experts through Web 2.0 technologies, Peer to Patent Australia aims to make the patent examination process more efficient and accurate.

Peer-to-Patent Australia will initially run as a 6-month pilot that will focus on the rapidly advancing technology areas of business methods and computer software. Up to 40 business method, computer software and related patent applications that have been filed in Australia and which are open for public inspection will each be posted on the Peer-to-Patent Australia website for a 90-day period. During that time, members of community can review those applications, submit prior art references and comment on the relevance of any prior art that has been put forward.

At the end of the review period, P2P Au will forward the top 10 prior art submissions for each application, as selected by the community of reviewers, to IP Australia for consideration in the examination process. The review process in no way abrogates the responsibility of the patent examiner to assess a patent application. Prior art submitted by P2P Au is solely designed to assist a patent examiner, who remains the arbiter of whether a patent is to be granted.

The project uses a consent based model. Patent applicants will be asked to consent to having their applications included in the pilot. There are currently 7 applicants who have consented to participate. These are IBM, Aristocrat Technologies Australia Pty Limited, General Electric Company, Hewlett-Packard, Residex Pty Ltd, Yahoo and CSIRO. Those applicants have put forward 18 patent applications for peer review. 15 of those will be made available at the launch.

For anyone who is interested in participating in the prior-art-search, sign up at www.peertopatent.org.au.

R18+ rating for computer games rally - notes, photos and video now online

2009-12-08T15:50:00.003+10:00

On Saturday, I attended a rally in Brisbane in support of an R18+ rating for computer games. The rally was well organised and had a decent turn-out.

A summary of events, photos and links to video recordings of the rally are now available on the Electronic Frontiers Australia (EFA) website.

Realising our Broadband Future - Brisbane consultative forum at QUT

2009-12-04T14:07:00.002+10:00

On Thursday 10 and Friday 11 December 2009, the Australian Government Department of Broadband, Communications and the Digital Economy (DBCDE) will be holding the Realising Our Broadband Future Forum in Sydney.

For anyone in Brisbane who is interested but unable to attend the main event, we are holding a Brisbane consultative forum on Thursday 10 December 2009 at QUT. This forum will include segements of the official video feed by live webcast, as well as facilitated discussion aligned with the themes of the national summit. The discussion session will be summarised and provided as feedback to the DBCDE summit.

We’re talking about our connected future. This isn’t about technology, it’s about how we can all use it – to connect communities, build businesses, improve our education and health systems, create and innovate, improve our quality of life for all.

Details -

When:
Thursday, December 10, 2009 from 8:30 AM - 4:30 PM (GMT+1000)

Where:
QUT Gardens Point campus - D block, room 101
2 George St
Brisbane, Queensland 4000
Australia

Register:
Register online

Contact:
If you’d like more information, please contact Paul O’Keeffe on 0423 358 827 or by email to paul.okeeffe[at]columina.com.

You can also follow the Queensland Twitter feed through #bbfqld – and the main summit at #bbfuture.

UPDATE:

The forum begins at 8:00am (not 8:30 as stated above). I should have also mentioned that registration is free.

Here are the updated details and program:

08.00 - 10.15 Registration and Plenary Session from Sydney (the Prime Minister's address runs from 8.05 to 8.35am Brisbane time; other speakers include Mike Quigley (NBN Co. CEO, Vint Cerf and Senator Conroy )
10.35 Stream 1 – Smart Infrastructure
11.20 Stream 2 – e-Health
12.05 Stream 3 – Digital Education
12.55 Lunch Break
13.30 Stream 4 – e-Business
14.15 Stream 5 – e-Community

15.30 Conference close

The Brisbane consultation forum will be held at Queensland University of Technology (QUT) Gardens Point campus, in D block room 101. (D block is immediately behind A block, nearest to the George Street entrance to the campus).

EFA calls for help on the R18+ games issue

2009-11-17T10:25:00.003+10:00

On the Electronic Frontiers Australia (EFA) website, EFA Chair Nic Suzor has made available a six page form-letter from the South Australian Attorney-General, Michael Atkinson, on the topic of the lack of an R18+ rating for games.

Nic writes:

"The letter reiterates that this is not going to be an easy fight to win. For Atkinson, the lack of an R18+ rating is clearly something that helps keep violent media away from children, and he sees no real harm in not making the same material available to adults..."

EFA is planning to put together a response to the discussion paper that analyses and addresses all of the points that Atkinson makes, as well as systematically covering the research in the field. If you are able to help, please contact Nic, join the R18+ games discussion list, or take a look at the EFA R18+ wiki space.

IP and Tech Law Clinic - 2009 advice sessions now full

2009-10-28T13:08:00.002+10:00

The Intellectual Property and Technology Law Clinic advice sessions for 2009 are now FULL.

We are hoping to offer further free legal advice services in 2010. Keep an eye on the website for more information.

The Future of Data Policy

2009-10-23T11:20:00.002+10:00

The Microsoft External Research Division has launched a book entitled, The Fourth Paradigm: Data-Intensive Scientific Discovery (2009) edited by Tony Hey, Stewart Tansley, and Kristin Tolle. The book was launched on the opening day of the Microsoft eScience Workshop that took place in Pittsburgh, USA from 15-17 October 2009. The book includes a chapter, 'The Future of Data Policy' (pp 201-208), authored by Professor Anne Fitzgerald, Professor Brian Fitzgerald and myself. The book is licensed under a Creative Common Attribution Share Alike 3.0 United States licence, and can be download in its entirety or by chapter at The Fourth Paradigm.

ANDS guides - copyright and data

2009-10-23T11:15:00.002+10:00

To follow on from my copyright and data presentation post -

Professor Anne Fitzgerald and I have produced two short guides for the Australian National Data Service (ANDS): one on Copyright and Data and the other on Creative Commons and Data. The Copyright and Data guide is now available (in html and pdf formats) from the ANDS website, the Creative Commons and Data guide should (hopefully) be available next week.

Presentation: Copyright and Data

2009-10-21T13:08:00.003+10:00

This morning I gave a presentation on Copyright and Data as part of QUT's Division of Technology, Information and Learning Support research seminars.

I have licensed my presentation under a Creative Commons Attribution 2.5 Australia licence. It is available for download here:

Copyright and Data (.pptx) or Copyright and Data (.pdf)

Together with Professor Anne Fitzgerald, I have also authored a short guide on Copyright and Data for the Australian National Data Service (ANDS). It is available from the ANDS website.

Event: How to Win an AIMIA Award

2009-10-15T09:52:00.004+10:00

The Australian Interactive Media Industry Association (AIMIA) is holding an event on Thursday 22 October entitled, "How to Win An AIMIA Award". The Awards have a Student/Education category. This is also a good opportunity to see examples of Australian interactive media works, how the works are judged nationally and how to create award-winning works with the principles applicable to interactive media work in general. Student-priced tickets are $30.

For more information and to register, visit the website.

Event Details:
Date: Thursday 22nd October 2009
Time: 3.30pm - 5.30pm with networking drinks afterwards
Venue: Central Eagle Street Conference Venue (in the Credit Union Australia building at 175 Eagle St)

Brisbane Creative Industries blog - new post on the IP and Tech Law Clinic

2009-10-12T17:05:00.003+10:00

I have just made a post on the Brisbane Creative Industries Blog on the IP and Technology Law Clinic. I won't repost in full here. If you are interested, follow the link.

A win for QUT student services

2009-10-07T14:08:00.002+10:00

Inspired by this recent post by Kate Carruthers, "Customer service and student support - QUT gets it" (and I can confirm that Kaylene Matheson in the law school is, in fact, excellent), I would like to share my own experience of being the beneficiary of exemplary service by QUT staff.

I am currently applying to universities in the US and the UK to undertake postgraduate study overseas sometime in the near future. The application process has at times seemed unnecessarily painful and complicated. The latest in my series of tiresome hurdles was to send my original academic transcript to one of the governing academic bodies in the US. But the transcript could not come directly from me - it had to come from the appropriate person at QUT who could verify the transcript, who would complete forms to that effect and send the forms and the transcript (sealed) to the relevant US address, and who would be available for follow-up if necessary. While I understood the reasoning behind these requirements, I despaired at what I would need to do to fulfil them. I had no idea who the "appropriate person" was and I was reluctant to ask a stranger to jump through the hoops on my behalf - I was, after all, just one student of thousands at QUT. I thought that at least this would take a lot of running around and probably a fair amount of time on my behalf.

I sent an email to the University Registrar, Carol Dickenson, asking for help. I figured I was probably aiming a little high up the daisy chain and Carol was probably too busy, but she seemed like the mostly likely candidate for the "appropriate person". Within only a matter of hours, my request had been passed to Sharron Caddie (Executive Officer, Office of the Registrar), Julianne Paltridge (Associate Director Client Services, Student Business Services) and Joshua Leuner in the Student Centre. I was informed that if I took the relevant forms to Josh, he would complete them for me and post them to the US institution with my academic transcript. I was also informed that QUT would waive the overseas postage fees for me. When I took my forms to Josh, he could not have been more friendly and helpful.

I was immensely impressed with the speedy response and general helpfulness of the QUT staff. They genuinely seemed willing to go out of their way to assist me. They made an otherwise troublesome and tedious process just that little bit easier.

IP and Tech Law Clinic - the official flyers

2009-09-17T15:26:00.003+10:00

In my last post, I announced that QUT and QPILCH are establishing the Intellectual Property and Technology Law Clinic which will, among other things, provide free legal advice to members of the creative and technology sectors with limited financial resources.

With the assistance of the remarkable Elliott Bledsoe, we have designed two flyers advertising the inaugral advice sessions to be held on 29 October 2009 and 26 November 2009. You can download the flyers here and here [.pdf].

Please feel free to display and distribute these flyers far and wide.

IP and Technology Law Clinic

2009-09-14T09:17:00.003+10:00

QUT Law Faculty and the Queensland Public Interest Law Clearing House (QPILCH) have received a small amount of funding to pilot an IP and Technology Law Clinic for 12 months. Part of this will be a clinical (elective) offering for QUT students in second semester 2010. Another part will be a free advisory service for Queenslanders needing IP and technology law advice who cannot otherwise afford a lawyer.

The Clinic will be led by Professor Brian Fitzgerald and me. If you are an IP lawyer in Brisbane who is interested in being involved in the advisory service, or a creator/user/Queenslander in need of some free legal advice, please contact me (Kylie) on (07) 3138 6836. We will be running two advice sessions in 2009 - Thursday 29 October and Thursday 26 November. Both sessions will be held in Brisbane City from 5:30pm-7:30pm. Advice is by appointment only and you must be able to attend in person.

Here is the flyer that we distributed at Big Sound last week. The flyer is geared towards musicians (because of the venue), but the advice service will also be relevant for other creators including writers, artists and designers. Tell your friends!

Think B4 You Speak campaign

2009-08-14T08:36:00.004+10:00

There's a new campaign afoot, and I think it's very worthwhile. It's called Think B4 You Speak, and it is targeting homophobic language, in particular the commonly-heard "that's so gay". Check it out .

Free Canberra Forum: Opening Australia's Archives

2009-07-23T13:59:00.002+10:00

Here's the details:

The Institute for Creative Industries and Innovation, the Creative Commons Clinic and Creative Commons Australia invite you to a free workshop and discussion forum Opening Australia’s Archives

Date: 25 August 2009, 11:30am-5:00pm

Venue: National Library of Australia, King Edward Terrace, Parkes, Canberra

Digital technologies have drastically changed the landscape of creating, collecting and providing access to cultural materials. As linear models of knowledge and cultural production are supplanted by more distributed, collaborative networking models, Australia’s cultural institutions are increasingly seeking to engage with their audiences in ways that capitalise on these new capabilities. In this environment, traditional copyright management models can present a significant barrier to realising the full economic and social value of a collection. As a result, archives internationally are exploring the potential of open access distribution models.

This half-day forum aims to bring together representatives of Australia’s cultural institutions to:

identify the benefits and disadvantages of providing open access to cultural collections;
document models of access currently being used by Australia’s collecting institutions;
identify barriers to providing broader access to collections;
gauge the level of interest in a coordinated sector-wide approach to access policies and practices; and
develop a plan for improving government policy on access to cultural material.

It will build on discussion undertaken at a preliminary meeting held at Old Parliament House in Canberra on 24 May, 2009, and will generate practical outcomes including best practice guidelines, proposed collaborative projects and a detailed advocacy strategy.

Facilitators: Professor Brian Fitzgerald (Professor of Intellectual Property and Innovation, Queensland University of Technology), Jessica Coates (Project Manager, Creative Commons Clinic) and Professor Phil Graham (Professor of Communication and Culture, Queensland University of Technology)

RSVP: Please RSVP by 10 August to Jessica Coates at j2.coates@qut.edu.au or on ph: 07 3138 8301

The forum is free to attend and lunch will be provided.

Australian Government releases Digital Economy: Future Directions paper

2009-07-15T12:05:00.003+10:00

Last night (on 14 July 2009), the Australian Government released its Digital Economy: Future Directions paper. The paper is licensed under a Creative Commons Attribution-NonCommercial-NoDerivativeWorks 2.5 Australia licence.

This is a short summary (or a summary of the Government's 35-page 'Snapshot' summary of the 103-page final report) of some of the key points made in the paper (imho).

The Digital Economy: Future Directions paper explains how government, industry and the community can work together to improve digital economy engagement in Australia. It provides the rationale for government taking strategic and enabling action to ensure that all parts of Australia benefit fully from the digital economy. The paper includes case studies of Australians who have engaged successfully with the digital economy. These case studies are designed to provide an insight into the diverse range of industries that can benefit from the digital economy, including health, education, water, transport and banking.

The Australian Government has defined the digital economy to be ‘the global network of economic and social activities that are enabled by information and communications technologies, such as the internet, mobile and sensor networks.’ (Snapshot p2; Final report p2) The government has recognised that a successful digital economy is essential for Australia's economic growth and ability to maintain international standing. The government has identified its role in developing the digital economy as that of an enabler. In this role, the government is developing of digital infrastructure, facilitating innovation and setting a conducive regulatory framework.

The Digital Economy: Future Directions paper discusses the initiatives being undertaken by government to improve Australia’s digital economy, in a number of key areas. Some of these areas are as follows.

National Broadband Network (NBN)
(see Snapshot p8; Final report pp 9-11)
In recognising the importance of world-class, high-speed broadband for Australia's future economic growth and social wellbeing, the government has committed to building the National Broadband Network (NBN). The National Broadband Network will improve Australia’s network capacity and allow Australians to enjoy high-speed carrier-grade video, data and voice services. This will have significant implications for industry in terms of new services, applications and business models. To assist Australia’s research community and commercial sector to fully map the applications and business models which will thrive in Australia’s high–speed future, the government will host a National Broadband Network: Realising the Vision forum before the end of 2009.

Open Access to Public Sector Information
(see Snapshot pp 8-9; Final report pp 12-14)
In the Digital Economy: Future Directions paper, the government has recognised that open access to appropriate categories of public sector information can drive digital economy and innovation benefits. In this context, ‘open access’ means access on terms and in formats that clearly permit and enable such use and reuse by any member of the public. The Australian Government has established the Government 2.0 Taskforce to advise and assist the government in making public sector information more accessible and usable and in making government more consultative, participatory and transparent.

Conducive regulatory frameworks
(see Snapshot pp 12-13; Final report pp 20-23)
The government will consider those aspects of Australia’s regulatory framework that are most pertinent to the digital economy to identify whether reforms are necessary to promote Australia’s development as a knowledge economy. For example, the Standing Committee of Attorneys-General recently agreed to amend state and territory Electronic Transactions Acts to reflect technological advances since the laws were enacted and to allow Australia to implement the UN Convention on Electronic Communications in International Contracts.

The nature of the digital economy is such that certain regulatory frameworks presently face greater pressures than others. Two examples of such pressure relate to:

copyright law—the rapid emergence of new platforms for social engagement, content distribution and political communications is putting pressure on, for example, copyright laws; and
convergence—where devices and platforms which originally had distinct functionalities converge or overlap and, as a result, put pressure to legislative schemes that were originally designed to deal with distinct devices and platforms.

With respect to copyright law, the Australian Government will consider whether the scope of the ‘safe harbour scheme’ should be expanded to include additional types of online service providers.

Minus Canvas 3 Exhibition

2009-07-02T09:39:00.002+10:00

Tomorrow evening I will be attending the opening of Minus Canvas 3 - an exhibition of works on paper, board and other found objects. My good friend and an amazing artist, Alex Bacskay, will be exhibiting there. All are welcome to the opening.

The event details are:

6pm, Friday 3 July 2009
Jugglers Art Space Inc, 103 Brunswick Street, Fortitude Valley QLD 4006

For more details see the Facebook Event

Inquiry into Improving Access to Victorian Public Sector Information and Data - report released

2009-06-25T11:04:00.002+10:00

[Cross posted from auPSI.org]

On Wedneday 24 June 2009, the Victorian Government released the Report of the Economic Development and Infrastructure Committee on the Inquiry into Improving Access to Victorian Public Sector Information and Data.

The Economic Development and Infrastructure Committee ('the Committee') was tasked with inquiring into, considering and reporting to the Victorian Parliament on the potential application of open content and open source licensing models, including Creative Commons, to Victorian Government Information.

The Committee made three key recommendations for access to and reuse of PSI:

1) That the Victorian Government develop an Information Management Framework for the purpose of facilitating access to and reuse of Victorian Government information by government, citizens and businessess. The default position of the Framework should be that all PSI produced by Victorian Government departments from now on be made available at no or marginal cost.

2) That the Victorian Government make use of the Creative Commons licensing model for the release of PSI. The Committee was told that Creative Commons licences can be appropriately used for up to 85% of government information and data.

3) That the Victorian Government establish an online directory where the public can search for and obtain information about PSI held by the Victorian Government. Depending on the access conditions the Government has attached to specific PSI, people will be able to download information and data directly, or make contact with people in the Victorian Government to discuss access conditions.

This is an immensely significant report, which has been noted internationally including on the ePSIplatform. In particular, the recommendation that the Victorian Government use CC licensing is very encouraging.

----

In summary:

Key Recommendations of the Report -

Recommendation 1: That the Victorian Government release a public statement indicating that it endorses open access as the default position for the management of its public sector information.

Recommendation 2: That the Victorian Government develop a whole-of-government Information Management Framework (IMF).

Recommendation 8: That the Victorian Government encourage as part of its funding agreements with research agencies and higher education institutions that research results be deposited in open access journals or repositories.

Recommendation 11: That the Victorian Government develop a consistent copyright licensing system for use across all government departments.

Recommendation 13: That exclusive arrangements not be entered into for licensing Victorian Government public sector information, excepting exclusive rights necessary to protect the public interest.

Recommendation 14: That the Victorian Government adopt the Creative Commons licensing model as the default licensing system for the Information Management Framework.

Recommendation 15: That the Victorian Government adopt a hybrid public sector information licensing model comprising Creative Commons and a tailored suite of licences for restricted materials.

Recommendation 16: That the Victorian Government develop specific guidelines for the pricing of public sector information (PSI), emphasising the provision of PSI at no cost or marginal cost.

Recommendation 21: That the Victorian Government require wherever possible that its information and data be stored in open standard formats.

----

Key Findings of the Committee -

Finding 1: Quantitative data about economic benefits arising from increased commercial exploitation of public sector information (PSI) does not currently provide clear guidance for policy. There is a growing view, however, that new commercial enterprises will emerge as access to PSI is improved.

Finding 2: Improved access to and utilisation of public sector information may result in economic benefits for the Victorian Government through greater efficiency in the allocation of resources and more informed decision-making and policy development processes.

Finding 5: There is substantial potential for spatial data held by the public sector to contribute to new commercial and public services and research. There are also significant opportunities for access to spatial data held as public sector information to be improved.

Finding 6: The proliferation and interdependence of patents can act as a barrier to innovation and the delivery of new products to the market.

Finding 7: The existence of copyright in government-owned materials does not necessarily limit the extent to which they can be made publicly available. Copyright and in particular Crown copyright may, however, limit opportunities for re-use of those materials.

Finding 8: A lack of standardised licensing practices between and within governments can act as a barrier to public sector information access.

Finding 9: The removal of copyright from Victorian Government public sector information (PSI) is unlikely to simplify access to and re-use of PSI. Access to and re-use of PSI will be best facilitated by issuing licences in accordance with existing copyright provisions.

Finding 10: Open content licences provide governments with a simple and effective mechanism to facilitate enhanced access to and re-use of copyright protected public sector information in a digital, online environment.

Finding 11: Creative Commons is a comprehensive licensing system that can be applied to both online and offline materials.

Finding 13: It is likely that Creative Commons licences can be appropriately applied to around 85 per cent of government public sector information.

Finding 14: The application of geographical restrictions to public sector information (PSI) licences will be difficult to enforce and may compromise the re-use value of government PSI.

Finding 15: Issuing attribution-only Creative Commons licences will assist to maintain the integrity of Victorian Government public sector information while ensuring access and re-use opportunities are maximised.

Finding 19: There is an emerging view that the application of no cost or marginal cost pricing to public sector information will increase access to and re-use of such information, with the potential to stimulate productivity and economic growth.

Finding 20: There is growing recognition that government should have a limited role in adding value to public sector information (PSI) for commercial purposes. The value of PSI should be enhanced through private sector activity for the creation of new products and services.

Finding 21: The provision of public sector information in open standard formats is a key component of open access.

Government 2.0 Taskforce

2009-06-24T10:31:00.003+10:00

On Monday 22 June 2009, the new Government 2.0 Taskforce was announced. The Terms of Reference for the Taskforce are that the Taskforce will advise and assist the Australian Government to:

make government information more accessible and usable — to establish a pro-disclosure culture around non-sensitive public sector information;
make government more consultative, participatory and transparent — to maximise the extent to which government utilises the views, knowledge and resources of the general community;
build a culture of online innovation within Government — to ensure that government is receptive to the possibilities created by new collaborative technologies and uses them to advance its ambition to continually improve the way it operates;
promote collaboration across agencies with respect to online and information initiatives — to ensure that efficiencies, innovations, knowledge and enthusiasm are shared on a platform of open standards; and
identify and/or trial initiatives that may achieve or demonstrate how to accomplish the above objectives.

If the Taskforce follows through on its Terms of Reference, I think it will do great things. Read more on the Government 2.0 Taskforce blog. The website is licensed under a Creative Commons Attribution 2.5 Australian licence.

My boss, Professor Brian Fitzgerald, is one of the members appointed to the Taskforce, along with Dr Nicolas Gruen, Mia Garlick and others. Brian's is an excellent appointment - he is an internationally recognised IP and technology law expert, whom I'm confident will contribute much to the Taskforce.

The Taskforce is also running a competition to design the Taskforce website's banner. All entries will be licensed under a Creative Commons Attribution Non Commercial 2.5 Australian licence.

Copyright Future Copyright Freedom Interviews now available

2009-06-19T14:23:00.004+10:00

Last month, I blogged about the Copyright Future Copyright Freedom conference run by Professor Brian Fitzgerald of QUT Faculty of Law and the ARC Centre of Excellence for Creative Industries and Innovation (CCI). I mentioned that during the course of the conference, my colleague Nic Suzor and I had the task of interviewing some of the conference delegates about how they first became involved in copyright law and what their perspectives are on the future of copyright. These interviews are now available online, thanks to Jimmy Ti who has helped us build the website around the conference recordings.

We will continue to add to the interviews on this page. As part of the Copyright Futures project, we are hoping to generate a bulk of interviews (ideally around 50) from copyright experts around the world.

The video and audio of the full presentations at the conference will also be made available online in the coming weeks.

Copyright Future: Copyright Freedom conference 2009 - central themes

2009-05-29T15:47:00.005+10:00

Some of the central themes and key points to come out of the conference were:

[Note - these are my notes and paraphrasing, not direct quotes]

Australia has typically followed UK and US movements in copyright law, often to our detriment. However, in some areas we are able to make independent copyright laws without offending international law (e.g. we could advocate for compulsory licensing of material for developing countries or for a thorough explanation of the Berne 3 step test). But will we do it? - Benedict Atkinson

The Berne three step test may have been interpreted wrongly - the steps, "do not conflict with a normal exploitation of the work" and "do not unreasonably prejudice the legitimate interests of the rights holder", are not necessarily as broad as we think, and normal exploitation and legitimate interests do not always have to mean monetary compensation. Authors have many different interests in their work. Maybe we should think about them - Professor Susy Frankel

We need to get our minds around the true justification of copyright law, and the true interests of creators. These are often different to what the closed-access and permission-based model would have us think - Professor Adrian Sterling and many other conference delegates

Professor Adrian Sterling suggested a motto for the conference - "Easy Access; Easy Licensing"
The Hon. Michael Kirby amended this to "Easy Access; Justifiable Licensing"

We are creating a generation of criminals ("copyright pirates") in our kids, who are used to downloading things from the internet and don't see why this shouldn't be allowed - we need to find a solution that prevents our children from being "criminals". We need to do this in such a way that copyright is still respected, because otherwise we run the risk of revolution - having our children revolt against copyright law and call for its abolition - Professor Lawrence Lessig

In the digital environment, we need to give up our obsession with "the copy". In an online environment, everything is a copy. Therefore, under the current copyright system, nothing can be done without permission and usually the payment of a fee. This is unsatisfactory. We need to focus on meanigful use as the reason for giving rise to the operation of copyright law requiring permission and/or payment - Professor Lawrence Lessig

We need to consider the cultural impact of copyright law, particularly for indigenous persons - Maroochy Barambah, Ade Kukoyi and Professor Susy Frankel

The key to innovation is information flows, especially within government and the public sector. To enable this, we need to free up copyright in public sector materials - Dr Terry Cutler

We need to look for new models of copyright and revenue-generation from copyright. One such model may be a benefit-sharing model, rather than a fee-based model - Professor Brian Fitzgerald

We need to rethink nearly everything we know about copyright law. We need to recognise that the idea/expression dichotomy is problematic. We need to recognise that users are situated within cultural and material spaces and limits and they use creative material in many, many different ways. We should acknowledge that copyright plays a relatively small role in the creative process, and that often creativity relies on the interplay between whatever is available and familiar (mass culture) and "play" or "serendipity". Copyright serves goals that are primarily economic and which promotes predictability. This is important because it enables the production of mass culture. But the focus on economic fixity can frustrate the creative process of situated users. There needs to be logical gaps in the law to permit play, serendipity and freedom - Professor Julie Cohen

[Update: my colleague, Elliott Bledsoe, has done what I could not and blogged pretty much the entire conference. See the "Creative Commons Through the Looking Glass" blog]

Copyright Future: Copyright Freedom conference 2009 - why I am lame and did not blog

2009-05-29T13:51:00.006+10:00

I returned last night from the Copyright Future: Copyright Freedom conference hosted in Canberra on 27-28 May 2009 [program available here]. I was hoping to live blog the conference (seeing as it was so interesting!), but unfortunately due to the historic nature of the venue (Old Parliament House) there were very few wired internet connections and no wireless connectivity. Peter Black (PeterBlackQUT) and Elliott Bledsoe (elliottbledsoe), who had their own internet connections (courtesy of some "dongles"), were tweeting during the day. You can follow their tweets at #copyrightfuture09.

I did take some notes during the day, but I have decided not to blog extensively on the individual presentations. Mainly because I feel that the fairly mediocre notes that I took do not do the presentations justice. There are some brief notes here, but nothing substantial.

QUT (which hosted the conference, convened by Professor Brian Fitzgerald), will be making the audio and video recordings of each presentation, and the relevant slide sets, available online under CC licences in the very near future (subject to presenter permission). I will post here when they are uploaded, so watch this space. The recordings are probably the best way to access the presentations for any who are interested. And I would highly recommend it, because most were brilliant.

Another reason I did not have much time to take detailed notes (excuses, excuses), was that (along with my colleague, Nic Suzor) I spent a great deal of my time running around with a low-quality mp3 recorder taking short (3-5 minute) interviews with some of the conference delegates. The interview questions centred around how each interviewee first became involved with or interested in copyright law; what they see as some of the main challenges and issues in copyright law; and what they see for the future of copyright. The interviews will also be made available online as podcasts, subject to interviewee permission. Interviewees included (among others):

The Hon. Michael Kirby AC CMG;
Professor Lawrence Lessig and Senator Kate Lundy;
Professor Julie Cohen;
Dr Terry Cutler;
Dr Nicholas Gruen;
Professor Graham Greenleaf;
Professor Susy Frankel;
Dr Prodromos Tsiavos and
Dr Matthew Rimmer.

Again, watch this space for notification of when the podcasts are available.

Conference - Copyright Future: Copyright Freedom

2009-05-08T10:58:00.002+10:00

On 27 and 28 May 2008, Professor Brian Fitzgerald of QUT will host a conference, in Canberra, on the history and future of copyright. I will be attending this conference, and I am very excited about it! Details are below -

This conference - Copyright Future: Copyright Freedom – will be held at Old Parliament House (OPH) in Canberra on Wednesday 27th May and Thursday 28th May 2009. The month of May in 2009 marks 40 years since the commencement of the Australian Copyright Act of 1968.

Program Chairs: Professor Brian Fitzgerald and Benedict Atkinson
QUT Law Faculty and ARC Centre of Excellence for Creative Industries and Innovation

The conference will consider the history of copyright law with special focus on the excellent work of Benedict Atkinson on the True History of Australian Copyright Law (2007). It will also chart the path of copyright law since that time and give special focus to future possibilities.

The conference will be opened by the Honourable Robert McClelland Attorney-General for the Commonwealth of Australia and our Keynote Speaker will be Professor Lawrence Lessig of Stanford University Law School.

Speakers include:

Professor Julie Cohen, Faculty of Law Georgetown University Washington DC
Professor Tom Cochrane DVC QUT
Maroochy Barambah, Songwoman for Turrbal People
Professor Adrian Sterling, Queen Mary College London
Dr Terry Cutler, Cutler and Co Melbourne
Professor Susy Frankel, Faculty of Law Victoria University of Wellington NZ
Professor Anne Fitzgerald, Faculty of Law QUT
Dr Prodromous Tsiavos, London School of Economics London
Professor Phillip Graham, Director of iCi QUT

For further information on this conference please contact Professor Brian Fitzgerald
at QUT via email: bf.fitzgerald@qut.edu.au

Part of the conference will be held in the House of Representatives Chamber in Old Parliament House. As we are restricted as to the number of people that can be present in the House of Representatives Chamber the conference audience will be limited to 100 people.

QUT free public lectures in May

2009-05-08T10:26:00.004+10:00

Professor Julie Cohen - Copyright and Creativity

In March, I posted notice of a free public lecture by Professor Julie Cohen of Georgetown University and Visiting Professor at Harvard Law School 2009. Professor Cohen will be speaking on Copyright and Creativity. The lecture will be held on Monday 25 May 2009 from 5:00pm-6:30pm in the Gibson Room (Room Z1064), Level 10, Z Block of QUT's Gardenspoint Campus. See my earlier post for more details. RSVPs were offficially required by 30 April 2009, but late RSVPs will be accepted if you are interested in attending.

Professor Lawrence Lessig - Change Congress and Regulatory Transparency: CHANGE v2: What changes will Obama need?

On Friday 29 May 2009, Professor Lawrence Lessig will give a free public lecture in the Banco Court, Law Courts Complex, 304 George Street, Brisbane. The lecture will be chaired by Justice Douglas of the Supreme Court of Queensland.

Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the School's Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School and a Professor at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court. Professor Lessig's career has focused on law and technology, especially as it affects copyright. He was one of the founding members of Creative Commons. Professor Lessig teaches and writes in the areas of constitutional law, contracts, and the law of cyberspace.

In this public lecture, Professor Lessig will talk about the project he (and others) launched in 2008 called Change Congress. Its purpose is to persuade members of congress to rely for funding on citizens' contributions rather than big donations from special interests. The organisation considers that funding by corporate special interests has caused members of congress to favour these interests, undermining the integrity of the legislative process and resulting in legislation that may harm the public interest. Change Congress V1 proposed a multi-tiered program to achieve reform. It planned to enlist the support of house representatives, encourage citizen contribution pledges, garner suppoer for sympathetic politicians, and track the relationship between representatives and lobbyists. V2, announced on 9 January 2009, has simplified this program by encouraging private donors to pledge to withhold donations from congress members who won't opt-in to the Change Congress system. V2 aims to abolish the culture of big private donations and free legislators from the grip of special interests. The aims of Change Congress are consistent with Barack Obama's goal to achieve a transparent political culture that restores public trust. Its success may be critical to Obama's hopes for enlisting congressional support for ambitious reforms to solve domestic and political crisis.

The free public lecture will be held on Friday 29 May 2009, in the Banco Court, Brisbane. There will be refreshments from 5:30pm, with the lecture commencing at 6pm and concluding at 7pm. Please register by 22 May 2009 to qutlawpubliclectures@qut.edu.au. Registered attendees may claim 1 CPD point for the Qld Bar Association and Qld Law Society. The program is available here [PDF].

High Court delivers judgement in the IceTV case

2009-04-22T17:28:00.003+10:00

Today, Wednesday 22 April 2009, the High Court of Australia handed down their judgment in the IceTV Pty Limited v Nine Network Australia Pty Limited case [available here]. The Court allowed the appeal with costs.

The appeal to the High Court arose from proceedings brought by the Nine Network in the Federal Court of Australia for infringement of copyright in their Weekly Schedule of television programmes to be broadcast each week. They alleged that each Weekly Schedule was a compilation, and therefore a literary work under the Copyright Act 1968, and that IceTV had infringed copyright by taking part of the time and title information from the Aggregated Guides (guides produced by third party Aggregators, authorised by Nine and to whom Nine provides the Weekly Schedule) and including it in their own (electronic) guide, the “IceGuide”. Nine alleged that this constituted a reproduction of a substantial part of the copyright work. IceTV denied that they had reproduced in a material form a substantial part of any Weekly Schedule and denied that reproduction from any Aggregated Guide was a reproduction of any Weekly Schedule.

French CJ, Crennan and Kiefel JJ summarised the approach of the lower courts as follows (at pp 2-3):

Accordingly, both the primary judge (Bennett J) and the Full Court (Black CJ, Lindgren and Sackville JJ) dealt with this matter on the basis that the subsistence of copyright in the Weekly Schedules was admitted. The dispute was treated below as one to be resolved, first, by a determination of whether the time and title information which was reproduced constitutes a “substantial part” of the Weekly Schedules, and secondly, by consideration of the “indirect reproduction” issue. Both the primary judge and the Full Court essentially approached the question of whether IceTV had reproduced a substantial part of any Weekly Schedule by identifying the “skill and labour” which was expended on creating the Weekly Schedules, then asking whether IceTV has “appropriated” Nine's skill and labour. The primary judge and the Full Court reached opposite conclusions on the point essentially because of different approaches to identifying the relevant skill and labour in question: the primary judge considered that skill and labour in making programming decisions was not relevant and that there was not a reproduction of a substantial part; the Full Court considered that this skill and labour was relevant and that there was a reproduction of a substantial part.

If the High Court had dismissed the appeal and affirmed the Full Court's decision, the practical result, in my view, would have been stifling for new players entering this market. It would have essentially given the Nine Network complete control over any schedules or guides setting out what programmes would be screening on Channel Nine and when, and would have preventing anyone from producing such schedules or guides without first obtaining permission from the Nine Network and most likely paying a licensing fee. This is notwithstanding that the Nine Network's primary function is broadcasting, not scheduling.

French CJ, Crennan and Kiefel JJ gave a joint judgment. They considered that the Weekly Schedules contain both “information” (the time and title information) and “creative” material (such as the synopses of programmes). In relation to the expression of time and title information, they considered that this is not a form of expression that requires particular mental effort or exertion and that the way in which the information can be conveyed is very limited (at p16). They stated at pp 16-17:

The authors of the Weekly Schedule (or the Nine Database) had little, if any, choice in the particular form of expression adopted, as that expression was essentially dictated by the nature of the information. The expression lacks the requisite originality (in the sense explained) for the part to constitute a substantial part.

Counsel for Nine sought to place importance upon the production not only of time and title information in respect of each programme, but also of the chronological arrangement of the time and title information for various programmes. Whether a selection or arrangement of elements constitutes a substantial part of a work depends on the degree of originality of that selection or arrangement. In this case, a chronological arrangement of times at which programmes will be broadcast is obvious and prosaic, and plainly lacks the requisite originality.

These considerations lead to the conclusion that the part of the Weekly Schedule (or the Nine Database) alleged to have been reproduced was not a substantial part.

This determination is, in my view, significant. Although the judges did not address the issue of whether Nine's Weekly Schedule compilation ought to attract copyright protection in the first place (though see pp 17-18 for a brief reference), at least in so far as it only compiled facts or information in a logical way, they did hold that that protection would not extend to the use of mere facts from the compilation.

Since Desktop Marketing v Telstra, there has been significant uncertainty around a user's ability to reproduce material contained in a copyrighted data compilation because the test for originality was so wide. This meant that a copyright holder could assert such control over a database that at times they appeared (and often purported) to be able to control use of what essentially amounted to mere facts and information in circumstances where copyright law should not extend. The above judicial statement, while not bringing us in line with the US decision of Feist v Rural Telephone Services in regards to whether copyright should subsist in a compilation that lacks creative input, at least takes a step in the right direction of tightening the originality threshold to provide that reproduction of the purely informational material within a compilation will not constitute a substantial part sufficient to give rise to an infringement claim.

French CJ, Crennan and Kiefel J also state at p20 (in obiter):

Rewarding skill and labour in respect of compilations without any real consideration of the productive effort directed to coming up with a particular form of expression of information can lead to error. The error is of a kind which might enable copyright law to be employed to achieve anti-competitive behaviour of a sort not contemplated by the balance struck in the Act between the rights of authors and then entitlements of the reading public.

Justices Gummow, Hayne and Heydon also delivered a joint judgment. In their judgment, they accepted the submission by IceTV that the originality of the Weekly Schedule “lay not in the provision of time and title information, but in the selection and presentation of that information together with additional programme information and synopses, to produce a composite whole” (p56). Accordingly, like French CJ and Crennan and Kiefel JJ, they found that IceTV had not reproduced a substantial part of Nine's original copyright work.

Gummow Hayne and Heydon JJ stated (at pp 57-58):

The issue requiring the comparison between what was taken and the whole of the work in suit may be distorted by a mediation, inspired by Desktop Marketing, upon the protection given by the Act against misappropriation of any investment of skill and labour by the author. In the present case, the temptation then is to classify the slivers [of information] each as original literary works...

...The proposition that the Court should look to “the interest” which the copyright protects invites processes of reasoning to which there applies the warning by Judge Learned Hand in Nichols v Universal Pictures Corporation. This is to the effect that the more remote the level of abstraction of the “interest”, the greater the risk of protecting the “ideas” of the author rather than their fixed expression. That risk appears to have been realised in the reasoning of the Full Court.

The Full Court approached the issue of substantiality at too high a level of abstraction, and in doing so tipped the balance too far against the interest of viewers of digital free to air television in the dissemination by means of new technology of programme listings.

It is also interesting to read the Justices' assessment (at pp 61-65) of just how IceTV compiled their IceGuide, using primarily “prediction” of time and title information and only relying on Nine's schedules to confirm their predictions, but I won't cover that in detail here.

Significantly in this case, all judges referred disfavourably to the statement made by Lord Reid in Ladbroke (Football) Ltd b William Hill (Football) Ltd that “what is worth copying is prima facie worth protecting”. Gummow, Hayne and Heydon JJ called this formula “deceptively simplistic” (p27). All judges referred to the need to balance the protectionist aspects of copyright law with the need to maintain a robust public domain. Furthermore, at p50, Gummow, Hayne and Heydon JJ discuss in obiter “a reason to treat the decision in Desktop Marketing with particular care...”

Yet the most important obiter remarks were made by Gummow, Hayne and Heydon JJ immediately following their conclusion (pp 65-66):

One final point should be made. This concerns the submission by the Digital Alliance that this Court consider the Full Court's decision in Desktop Marketing and, to the contrary of Desktop Marketing, affirm that there must be some “creative spark” or exercise of “skill and judgment” before a work is sufficiently “original” for the subsistence of copyright.

It is by no means apparent that the law even before the 1911 act was to any different effect to that for which the Digital Alliance contents. It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon “labour and expense” per se and upon misappropriation. However, in the light of the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works.

While it is disappointing that the Court declined to consider in detail the issue put forward by the Digital Alliance, it is encouraging to see an indication that the Court no longer appears to view Desktop Marketing as the ultimate Australian authority on this matter and considers that it should be treated with caution.

Unlocking IP 2009 presentation - Professor Anne Fitzgerald and Kylie Pappalardo (QUT) - Moving Towards Open Standards

2009-04-17T13:23:00.003+10:00

In the afternoon, Professor Anne Fitzgerald and I presented on the legal (copyright and patent) issues involved in standards development and use, and how we might move towards a more open system of standards from a legal perspective.

Our slide set is available in powerpoint or in PDF.

I believe that UNSW will be publishing conference papers, including ours, in the near future. I will keep you updated on the publication status of our paper.

Unlocking IP 2009 Presentation - Matthew Landauer, OpenAustralia.org

2009-04-17T13:22:00.001+10:00

Probably one of the most interesting presentations from the day came from Matthew Lanauer from OpenAustralia.org. OpenAustralia.org is based on the UK site by mySociety: theyworkforyou.com. OpenAustralia.org is a non-partisan website run by a group of volunteers which aims to make it easy for people to keep tabs on their representatives in Parliament.

In his presentation, Matthew described the problems he has faced gaining copyright permission from the Australian Government to host material such as Senate debates on the website. The Australian Hansard information is Copyright Commonwealth of Australia. For this material and other information, Matthew had lodged repeated requests with the government for permission to use the material, and had not received any response. Ultimately, in relation to one set of material he received an email from someone in government claiming that the material in question was free to be used as it was considered to be in the public domain (a position contrary to the copyright statement on the material). In relation to another set of material, Matthew considered he might have an implied licence, because although the government never officially responded to his request for permission with a yay or a nay, they sent him the material he asked for after he had informed them what he intended to do with it. However, it relation to a great deal of the material on Open Australia.org, Matthew is still not entirely clear of Open Australia's legal position.

It is a great disappointment that someone like Matthew should have to be in this situation of legal uncertainty. We have a government that claims to be committed to openness and which has commissioned such pivotal reviews as the Review of the National Innovation System (which recommended more openness in government, particularly from a copyright perspective) and yet he still have repeated copyright requests going unanswered. OpenAustralia.org is a really important project from a democratic point of view, and I really hope that the government steps up and proves much more helpful in the future.

Unlocking IP 2009 presentation - Elliott Bledsoe (Creative Commons Australia and QUT) – Still No Good: APRA's non-commercial licensing amendments and

2009-04-17T12:52:00.001+10:00

APRA (Australasian Performing Right Association) takes full assignment of all past, present and future performing rights
not compatible with CC licensing (there is assignment back option or non exclusive licence for a specific purpose option, but these are not really helpful for CC)
so...

APRA has offered the non commercial licence back -

right to sub-licence communication right for non commercial purposes
no consideration or financial incentive
no direct or indirect financial gain on behalf of sub-licensee
sub-licensee is a not for profit entity
entity does not receive public or institutional funding

What is consideration?

Consideration is broad at law
should be read with “financial incentive” to limit?
But use or word “or” (“consideration or financial incentive”) suggests not
very wide

What is a not for profit entity?

Synonymous with non-profit
tax department – activities or entities where primary purpose not directed towards commercial advantage
entity? - under Corporations Act can be individual, partnership, trust etc.

Commercial advantage?

Who is making gain?
What about content exhibition – MySpace; lastfm.com etc.

Results?

Many things ruled out
members probably want to make use of online platforms
but probably not within scope of licence back
members may not understand this

Only grants communication online right
Rules out CC
because CC is a broad grant for other rights beyond communication
and CC applies to any use – online or offline

So CC still not available to APRA members

But at least APRA is trying. Hope for more progress in future.

Unlocking IP 2009 presentation - Louise Buckingham (Faculty of Law, UNSW) – Traditional Knowledge and the Public Domain: an overview

2009-04-17T12:45:00.002+10:00

In a conference that was largely celebrating the notion of the public domain, Louise had a different perspective regarding how these notions affect traditional owners. I found her talk very interesting, because it highlighted the areas in which we must tread carefully. With our work with Creative Commons Australia, we are always careful to stress that CC is a choice only for those creators who want to share their work for free – it will not be appropriate for everyone. The same is true when we talk of the public domain – we should keep in mind that where indigenous culture is concerned, openness is not always the primary concern.

My notes:

The notion of the public domain is reified and exulted
In theory, it is important for democracy
Connotations of openness and freedom and undeniably appealing
But we when consider the intersection with tradition rights, it is problematic
The Australia academic environment is wary of examining how traditional forms of expression are affected detrimentally by this area
The appeal of the public domain has gained popularity on a global scale, but for indigenous people the issues are local
If we ignore there concerns, we run the risk of falling into imperialistm and colonialism
There is lots of talk about how traditional cultural expression does not fit within western copyright regimes
But not much talk about how notions of the public domain can act as another way to disempower indigenous people
Academics who have written in this area - Cathy Barry; Jane Anderson; others – highlight the cultural particularity of notions of the public domain
In 2000, UK and Australian governments agreed (after long negotiations) that traditional works should be repatriated to their traditional owners; but this was contrary to the practice of about 30 large museums and galleries at the time and they were able to prevent repatriation on the basis that this was public knowledge

Conclusions (tentative):

- Public domain is inherently global in its idealised form
- Protection for traditional knowledge must be local
- Currently dealt with at a global level, which only increases tension
- Public domain can be a domain of exclusivity and exclusion, as well as one of “openness” etc.
- It can legitimise the process of exclusion, “othering”, discrimination against indigenous people.

Unlocking IP 2009 Presentation - Graham Greenleaf (Faculty of Law, UNSW) – The Magic Pudding: Australia's Public Domain

2009-04-17T12:23:00.001+10:00

The conference kicked off with a plenary by Professor Graham Greenleaf, who leads the research team at the of Centre for Cyberspace Law and Policy at UNSW.

I won't summarise everything from his presentation here, but in short his main point was that “the Australian legal environment is relatively inhospitable to the public domain”.

Graham uses the term “public domain” in a wide sense, to encompass not only material that is completely free of copyright protection, but also material that is openly licensed and other similar categories of materials that are free for reuse.

Graham examined 10 areas in which we can improve Australia's public domain:

1. Scope for broader exceptions

There are issues surrounding the 3 step test under the Berne Convention
Would a fair use exception give more balance?

Other issues that need copyright review:

Should contracts override exceptions to copyright?
When can we rely on implied licences – CAL v NSW shows that the law is too narrow
Does liability for authorisation extend too far?

2. Legal deposit's role in innovation

Examining the significance of the role of online repositories

3. Finding missing rights holders

Orphan works
How to balance innovation and author's interests
US copyright office recommends a statutory licence to use, after a diligent search and subject to contingent payments for use (if author is located) – this sounds sensible

4. Enabling open content licensing

5. Maximising the value of open source software to Australia

6. Moving towards open standards

7. Coexistence of collecting societies and public rights

Are collecting societies making it easy enough for their members to use open content licences when they wish to?
Are their practices too restrictive?
Need to examine whether the public ends up paying collecting societies for works that are in the public domain.

8. Reuseable government works

Currently no consistent policies on reuse of government works
Australia is becoming an international rarity in its restrictiveness
Should there be a seal for reusable government work (to communicate which government works are available for reuse)?

9. Public rights in publicly funded research

Do universities publishing such research outputs in repositories need some 'safe harbour' protections?
So if copyright infringement inadvertently occurs, steps can be made to remedy this without attracting liability first
Should this extend to part research outputs as well?
Should it extend to patent rights?

10. Indigenous culture's relationship to the public domain

Where to from here?

An approach based on both principles and compromise
copyright today is equally about respect for authors rights and the public's rights
public rights need separate articulation and representation
a peak organisation for the copyright public domain
a charter of public rights in copyright
A public rights focused law reform review of the Copyright Act
Positive strategies and public messages [for a peak body to adopt]
CC's 'some rights reserved' is a good slogan
Albert the magic pudding as the mascot for Australia's public domain – the “cut-n-come-again” pudding

Comments from Professor Brian Fitzgerald (QUT):

There is an evolution of copyright law from a control paradigm to an access paradigm
This is what occurred in the Google Book Search settlement – only the first iteration of what we may see in the future
Not free use but not compulsory licence use – somewhere in the middle, market driven, benefit sharing model
Public domain is structured to some extent to the laws existing outside of copyright e.g. competition law – Sony case – HC interested in the idea that there are other property rights out there that had to be reconciled. Social habits also structure this – e.g. file sharing and peer to peer – cases currently before the courts
We need to get government involved as an advocate in these issues

Unlocking IP 2009

2009-04-17T12:22:00.000+10:00

Yesterday, on Thursday 16 April 2009, I attended the 2009 Unlocking IP Conference, hosted by the Cyberspace Law and Policy Centre at the University of New South Wales (UNSW). The conference is continuing today (Friday 17th), but I returned to Brisbane last night. I was hoping to live blog my notes yesterday, but unfortunately there was no internet access available. It continues to surprise me just how many conferences, in this day and age, do not provide wireless internet access to their conference delegates. In any event, I made some notes during the day, which I will be posting here. Some of these notes are brief, and they only cover a small portion of the presentations made yesterday. For most of the day the conference was divided into two streams so by necessity I missed at least half of the presentations. However, the ones I did catch were very interesting and I commend UNSW for bringing such a dynamic crowd together.

At the moment, the abstracts for all papers presented at the conference are available on the Unlocking IP website. I believe the team will also be making available slide presentations, full conference papers and podcasts sometime in the near future.

Copyright protection and data compilations

2009-04-02T13:42:00.003+10:00

Over on the Digital Curation Blog, Chris Rushbridge has an interesting post entitled, "Are research data facts and does it matter?"

I have just posted a response, which I am reproducing here:

I would like to take this opportunity to explain some of the research we have undertaken in the OAK Law Project and conclusions we have reached regarding copyright protection of data compilations in Australia. We have two primary publications addressing this area: Building the Infrastructure for Data Access and Reuse in Collaborative Research: An Analysis of the Legal Context and Practical Data Management: A Legal and Policy Guide.

s10(1) of the Australian Copyright Act 1968 defines a literary work to include a "compilation". This is where protection for data compilations under Australian law derives from. Any data that is collected, arranged, organised and presented in a logical fashion will usually be regarded as a compilation.

Chris makes a good point that many data compilations will require a great deal of effort, analysis and creativity. In the US, creativity is a requirement before a data compilation can be protected by copyright. In Australia, creativity is not required. Only that the compilation is a result of the exercise of skill, knowledge or judgment in the arrangement of the data, or the investment of substantial labour or expense in collection the material (Desktop Marketing v Telstra).

It can often be difficult to tell whether a compilation is one that would attract copyright protection. In our work, we have tended to err on the side of caution and assume that most compilations will attract copyright protection. This is because the threshold in Australia is so low. The main case in this area, Desktop Marketing v Telstra, involved the copying of a telephone directory. A telephone directory is merely a compilation of names and numbers listed in alphabetical order. If this is a compilation that attracts copyright, then most other compilations are likely to be protected by copyright under Australian law as well.

Copyright law does not protect mere facts or information. Rather, it protects the expression of facts or information in a material form. This means that generally there would not be a problem with copying some of the basic facts contained in a compilation. For example, if I were to list the names and numbers of a small collection of my colleagues on my website, that would not usually be a problem. I have extracted the data that I need, in a fairly "random" fashion (in that I have not just copied a few pages of names and numbers in alphabetical order directly from the White Pages). I have not copied the way that the data is arranged in the telephone directory (the “expression”).

In regards to Science Commons’ decision to discontinue advocating the application of Creative Commons licences to data compilations, my understanding is that they came to this decision for two reasons:
(1) It was not always clear in the US whether the relevant compilation attracted copyright. If it did not but a person had put a CC licence on the compilation in the mistaken belief that it did, then restrictions would have been imposed on that dataset (e.g. that it could only be used non-commercially) which actually had no legal basis for being imposed; and
(2) CC licences all contain an attribution requirement and Science Commons were concerned about what they call "attribution stacking" - i.e. where a dataset is compiled from data contributed by many different researchers, it would be extremely difficult for a user to attribute all of those researchers.

At OAK Law, we still believe that CC licences can be applied to datasets in Australia because the concerns noted by Science Commons do not arise to the same degree in Australia. Firstly, we have a lower threshold test for copyright protection, meaning that copyright will more readily attach to datasets in Australia and the first problem noted by Science Commons is less likely to occur. Nevertheless, to be sure, we usually advocate that the widest CC licence - the attribution only licence - be applied to datasets. Secondly, unlike in the US, Australian copyright law includes Moral Rights, meaning that creators have to be attributed anyway, regardless of whether a CC licence is applied or not. We think there are various ways of getting around the "attribution stacking" problem - for example, a group of researchers could agree on a common way to be attributed (e.g. we could be attributed as "the OAK Law Project"), or the data could be attributed using a URL, which an interested party can visit and which can list all the contributors (and this list can be added to over time). The advantage of applying CC licences to data, in our view, is that it provides some certainty to users about what they can and cannot do with that data.

If you are interested in this issue, I would also advise reading these posts by Robin Rice and Rufus Pollock.

Unlocking IP 2009 Conference – National and global dimensions of the copyright public domain

2009-04-01T09:44:00.003+10:00

On 16 April, I will be attending the Unlocking IP 2009 Conference in Sydney, titled, "National and global dimensions of the copyright public domain". Together with Professor Anne Fitzgerald, I will be presenting a paper on the intersection of IPR and standards. The abstract of our paper can be read on the Unlocking IP conference papers webpage.

Details of the conference are:

Unlocking IP 2009 Conference –

National and global dimensions of the copyright public domain

16-17 April 2009 - UNSW Sydney

UNSW's Cyberspace Law and Policy Centre invites you to register now for an international conference from the 'Unlocking IP' ARC research project, which investigates how Australia's digital commons, both the public domain and public rights created by open content and open software licensing, can be expanded and protected. It focuses on 'self help' actions within the existing statutory context, in Australia's distinct legal and cultural context, and on comprehensiveness - we offer preliminary results from the first survey of Australia's digital commons, with data from National Library of Australia.

The conference includes reports and case studies from the front line, where new models for sharing and trading intellectual property meet the reality of business, government and educational demands, new technological opportunities and lessons learned from implementation of licences like Creative Commons and Free for Education. Book publishing under hybrid business models at Sydney University Press, online user generated content using Wikimedia, and international initiatives like the US ‘Reboot.gov’ and China's IP abuse rule are featured, alongside detailed analysis of emerging legal and policy directions.

A highlight of the conference will be the launch of the 2009 Consumers International IP Watch List. Arising from the CI Access to Knowledge project, the list identifies countries whose IP policies and practices are harmful to consumers. It is used as a counterbalance to the United States' "Special 301" Report, which is an annual report highlighting countries that supposedly do not provide strong enough protection for the interests of US intellectual property owners.

The venue is Law Faculty of UNSW, Kensington Sydney, close to beaches, parks and Sydney CBD.

For details of speakers and the program: http://cyberlawcentre.org/unlocking-ip/2009/program.htm

Free public lecture - Professor Julie Cohen on Copyright and Creativity

2009-03-23T10:11:00.003+10:00

On Monday 25 May 2009, QUT will host Professor Julie Cohen, Professor of Law at Georgetown University and Visiting Professor at Harvard Law School 2009.

Professor Cohen is a distinguished intellectual property and privacy law scholar, with particular focus on copyright and on the intersection of copyright and privacy rights in the networked information society. She is a co-author of Copyright in a Global Information Economy (Aspen Law & Business, 2d ed. 2006), and is a member of the Advisory Boards of the Electronic Privacy Information Center and Public Knowledge. Professor Cohen received her A.B. from Harvard University and her J.D. from the Harvard Law School, where she was a Supervising Editor of the Harvard Law Review. She is a former law clerk to Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit.

On Monday 25 May 2009 from 5:00pm-6:30pm, Professor Cohen will give a free public lecture on Copyright and Creativity. The lecture will be given in the Gibson Room (Room Z1064), Level 10, Z Block of QUT's Gardenspoint Campus [map]. RSVPs are required by 30 April 2009 to Courtney or Collen via email at infocci@qut.edu.au or phone +61 7 3138 3556.

Abuse of notice and takedown procedures

2009-03-19T11:59:00.003+10:00

Yesterday, Slashdot reported:

"According to a PC World article, Google has submitted a brief to New Zealand about its proposed copyright law (section 92A). "In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.""

I find these numbers rather alarming. If accurate, they demonstrate a serious need to reconsider the true effectiveness of notice and takedown procedures. As a mechanism, these procedures were devised as a way to manage potential and threatened copyright infringement suits. But as we have seen elsewhere in the copyright environment, the ability to make assertions of infringement can be and often is abused. Right holders have been known to make assertions of copyright infringement when users were in fact acting within their fair dealing or fair use exception rights. But I find the abuse of notice and takedown procedures even more concerning because it is not just rights holders making incorrect claims of infringment.

In Australia, s202 Copyright Act 1968 provides:

Groundless threats of legal proceedings in relation to copyright infringement
(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of copyright, then, whether the person making the threats is or is not the owner of the copyright or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he or she has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or, if done, would constitute, an infringement of copyright.

My question is - is this enough to protect from groundless takedown notices? I think it would depend on the language of the notice, especially since s202(2) provides: "The mere notification of the existence of a copyright does not constitute a threat of an action or proceeding within the meaning of this section." Not to mention that the procedure for actually exercising the rights granted by s202(1) is quite expensive. I think this is an issue that our courts and legislature should give serious consideration to. The purpose of copyright law is to facilitate innovation, not to stifle it.

Google and Victorian Government work together on a Victorian Bushfires Events map

2009-02-20T09:06:00.002+10:00

The Victorian Government and Google Australia have come together to develop the Victorian Bushfires Events map. This is not a map tracking the actual bushfires (see my previous post), but rather to give Victorian citizens information about where they can find events and fundraisers supporting victims of the fires. The map was announced yesterday on the Google Australia blog and on Wednesday by the Victorian Premier. From the Victorian Premier's annoucement:

People wanting to organise or find bushfire community events in their local area will now be able to do so easily thanks to a new online map developed by Google Australia’s engineers for the Victorian Government.

Premier John Brumby said the Victorian Bushfire Events map would be a wonderful way for people to find local events where they would be able to watch Sunday’s Together for Victoria service in Melbourne but also a useful tool for future local bushfire community events.

“People unable to make it to Melbourne on Sunday will now be able to find or host an event where they can be a part of the Together for Victoria memorial service in or near their local area,” Mr Brumby said.

“The generosity of Victorians and Australians has never been more evident in the aftermath of the devastating bushfires and going forward this online tool will assist people in promoting their local fundraisers.

“It will also assist in the organisation and staging of these events - events that are humbling in their generosity and community spirit, and very much appreciated by all Victorians.”

The Victorian Bushfire Events map will allow local community groups to advertise events and fundraisers, and people to find events in their local area, not only in Victoria but across Australia and the world.

It is encouraging to see Google and the Victorian Government working together on this, but disappointing that it didnt happen sooner when locational information about the actual fires was vital.

Access to Victorian fire data

2009-02-13T11:10:00.004+10:00

Yesterday afternoon an interesting story appeared on ZDNet Australia: “Vic Govt limited Google’s bushfire map”. I encourage you to read the full post on ZDNet Australia, but in summary, the post documents Google’s trouble in gaining access to Victorian Government data about the movement of bushfires in Victoria.

According to the post, Google has been working with the Commonwealth Fire Authority, which manages fires on private lands, to overlay the Authority’s data onto Google Maps to produce a real-time map of the locations of the fires. The map also uses a colour scheme to convey the seriousness of the fires: green (safe), yellow (controlled), orange (contained) and red (ongoing).

Naturally, this map is immensely beneficial to those in Victoria and elsewhere who are attempting to track the bushfires.

However, Google has run into some problems gaining access to data to plot fires on public lands. This data is owned and controlled by the Victorian Department of Sustainability and Environment, and is covered by Crown copyright. As such, permission is required from the government before the data can be used, and for Google this permission has not been forthcoming. The result is that Google has been unable to plot this data onto their map.

As noted in the ZDNet Australia post, this is not the first time Google has had trouble accessing and using Australian government data. They were expressly denied permission from the Commonwealth Department of Health and Aging to overlay data from the National Public Toilet Map onto a Google Map.

Why is the government so unwilling to share its data? My guess is that there are two possible reasons. The first is that in some cases, the government has a misguided idea that data can be used to build online systems or services (usually these will be geospatial systems or services) which can be used to generate revenue by charging for access. The other is that the government is naturally risk-averse and would prefer to control their data as tightly as possible.

What the government is forgetting is that it is a representative of the people and the government-owned data has been collected using public funds. We, the Australian public, have paid for that data through our taxes and as such, we should have the benefit of that data. Surely it is most beneficial for the public if we can have ready access to that data in the most efficient and convenient way possible. And if that is through a Google Map, then the government should enable this. There can be no argument that in the face of tragedy such as the Victorian bushfires, the government should not hinder our ability to access as much information as possible about that tragedy. This includes the ability to easily track those bushfires via a Google Map.

Arguments have been made that as the access and use issue can be traced back to Crown copyright, then Crown copyright should be removed, as is the case in the United States where government data and publications are held to be in the public domain. I do not believe that this is the answer. Rather than remove Crown copyright completely, the government should be encouraged to release their material where possible under open licences such as the Creative Commons Attribution licence. This should be the default position, unless access to the material must be restricted due to privacy or national security concerns. The government must engage in a “push” model – where it systematically “pushes” its material out to the community – rather than a “pull” model – where members of the public must seek permission or lodge a Freedom Of Information request to access that material. Crown copyright can serve an important purpose, if only through the operation of the requirement of attribution (a requirement imposed through the Creative Commons licence, similar to moral rights), which requires that the author of a material (in this case, the government) to be attributed wherever the material is reproduced. The requirement of attribution for government copyright material can serve a two-fold purpose – (1) it allows the government to retain some control over the material it produces; and (2) it verifies to the public that the material has come from a reliable source.

Our research group at QUT has done some work on this area. See the auPSI website for more information.

So long, Justice Kirby, you will be missed

2009-02-02T09:19:00.002+10:00

Justice Michael Kirby, in my opinion one of the greatest judges to ever sit in the High Court, retires from the bench today:
http://www.abc.net.au/news/stories/2009/02/02/2479498.htm

There have been many times since Justice Kirby joined the High Court in 1996, and especially during the Howard Government years, that Kirby J seemed like the leading voice of reason and compassion. He has systematically defended the rights of the downtrodden and the marginalised - whether they be refugees, Aboriginal peoples, homosexuals or women. I can only hope the High Court continues his legacy.

Update: Andrew Stammer's response to my notes from his presentation at the APSR Open Access Publishing Workshop

2008-12-23T12:18:00.003+10:00

On Monday, 8 December 2008, I blogged my notes from the Australian Partnership for Sustainable Repositories (APSR) Workshop entitled, Open Access Publishing: A PKP User Group Workshop, which I attended in Sydney on Thursday 4 December 2008.

In my notes, I focused on the presentation given by Andrew Stammer, Journals Publishing Director at CSIRO Publishing. Today I received an email from Andrew, responding to my post. Andrew has kindly permitted me to post his comments in full:

There are two points I’d like to explore further with you.

1. I did not say it was part of a publisher’s role to lobby. I did say that in response to the challenges presented by Open Access this publisher is doing the following:

Striving for quality in content
Striving for quality in delivery
Promoting what we do
Nurturing the relationships
Offering OA options
Lobbying
Engaging in the dialogue

Publishers do lobby to gain influence, just as proponents for OA lobby to gain influence. It’s how the game is played.

2. Costs of producing a journal also astonish me. You may be sure that if we could publish more cheaply, without compromising quality, we would. Your suggestion to try printing on demand is sound – indeed that is what we do. It is just that the demand it great, so we have to print a lot of copies. Our journals are available online as well as in print. Subscribers pay a significant premium to receive print in addition to the online version. I wonder why they keep ordering print, but they do, and so we supply it. Some publishers have forced the issue by stopping print versions. The American Geophysical Union is an instance of this, they will cease print in 2010. I know of another publisher that ceased print and suffered an erosion of subscriptions as a result. Our approach has been to let the subscribers decide. Perhaps difficult economic times will force this issue.

John Willinsky – The Open Access Advantage for Research: It’s more than the Price

2008-12-08T13:03:00.001+10:00

My notes from John Willinsky’s talk at the APSR Open Access Publishing Workshop (they are a bit rough):

What is important = Mobilisation of knowledge

Background on PKP – a humble project with humble origins
Business model = PKP gets grants for research projects, and in the course of that research they develop software
John started out in 1998 with this out of frustration as an educator – his primary goal was being able to excite kids about knowledge
Once he become Prof – goal was exciting teachers about knowledge
Frustrating as an educator to not be able to share knowledge with students except when they were at the university, on campus, talking and accessing the material that the university pays for. But once they leave the university they have nothing – library cards are taken away – essentially told their thirst for knowledge must end once they leave the university
So why are we teaching people to be interested in learning and knowledge if we don’t make the knowledge available to them?

Consequences of the serials crisis was about access to knowledge in a fundamental way
Internet was exciting and filled people with hope because suddenly access was possible

Principle of the 1990s – asking, how are we going to make this work? On what basis can we circulate this?
People didn’t wait for an answer
They just started putting things up
And discovered that they got traffic; there were readers; people were interested

PKP started in 1998 – but realized they weren’t going to be able to convince people to put their journals online and make them free
Because then people were asking, what will it cost?
And we are still trying to answer that

Now, John proposes that this is a misleading question
He is not asking us to reconcile how some journals are publishing entirely with a zero budget while other journals have huge expenses
Different journals work on different economies, habits etc
All PKP wanted to do was contribute to this
Another piece to a complex puzzle
A piece that said, YOU can decide how much this will cost – will you use open software or not, will you have volunteers or paid work…etc?
There are some journals that have always been run on nothing more than the enthusiasm of academics and they deserve the proper software for this
That is why there is such a DIY focus to the software
And why PKP uses open source software

Business model for open source software = people don’t pay for software but they contribute to the software and build a community of users
This sounds a lot like scholarship
The software and the publishing model could come together

Saw value of work not in its profit or loss, but the value in its circulation

PKP continues to be funded from research grants, principally from Canadian Government

Want to provide a choice for the academic community – academics deciding how they want to shape the products they are creating

Examples

1. Research e.g. – Open Medicine

Series of editors for Canadian Association of Medicine were fired because Association was not happy with the direction they were taking with the journal ($$)
Board resigned because they were upset the editors were fired
PKP offered the free software as an opportunity
Not fair that CMA and pharmaceutical companies could interfere with the research being disseminated
So these formerly well paid editors decided to form an open journal called Open Medicine
Agreed they would not accept medical advertising, and they would make their content available immediately for free
Has been difficult
Now on the brink on being indexed
Established for themselves the possibility of running a journal on a different economy
Interesting academic freedom questions – not just about the money
About keeping universities and academics at the forefront of what makes research daring
We need to see the libraries of our universities as public institutions

2. Eg – research on registered massage therapists

It was discovered that registered massage therapist they were entirely engaged in the research in PubMed, and frustrated that they could only see 15% of research that was available. They were not prepared to tell their clients about the research unless they could see the methodologies – interesting that this group would raise their standard of care in accordance with the open access of material

3. E.g. – Wikipedia

Finished a study on Wikipedia as a public point of entry
Fact that so many people are coming together to discuss and debate knowledge is itself a public good
Asked how much research is being included in wikipedia
Compared with Stanford Encyclopedia of Philosophy – peer reviewed, free, in text links, etc
Found that 80% of entries in Stanford E of P are being cited in Wikipedia [me: that’s pretty cool]
Wikipedia may not be accurate about some things, but it is accurate about Aristotle, Descarte, the meaning of life – to the extent that it is citing peer reviewed literature
In a 2 week period, ¾ of the 80% cited were viewed and discussed
180 000 references to peer reviewed literature in W (but most of it not freely available)

Where are PKP going next?

Open access = public access

(1) Monograph is one of the most exciting developments moving forward
What we have done with journals has only harmed monographs
“shrinking monograph budget”
The thoroughness of an argument in a monograph is an important intellectual property that we cannot allow to disappear
If we discourage people from thinking in book length thought than the quality of research will decline

Want to create a digital option with print on demand for monograph
Want to use the same principles of OJS and OCS
Monograph system for monographs that would not otherwise get published – e.g. studies show that if you are working in Latin American history at an American university, then you will not get your monograph published

Want to bring in some ideas:
1. Bring back the great ideal of a wonderful editor – using the social network
2. Want to build an incubator where authors can start to put their work and where an editor could say – “I think this looks promising – let’s see if you have a book here”
3. Encourage people to think about whether they have a book or not and start developing it at an early stage
4. Make sure people are aware of what is already out there
5. Mainly about conceptualization – the monograph is something that needs an alternative approach to – the universities have set the parameters of what they are willing to publish as a monograph and we think that it is unacceptable – need to foster more extensive work
6. Want to create a publication area that lasts for longer – build a place for the book to be a permanent part of a growing culture – all comments received in the incubator become part of the book’s development

(2) how can we create better quality layout in a way that costs less
product = lemon8-xml
like a great copy editor
e.g. can compare bibliography with bibliographies in PubMed and correct mistakes

(3) Working with Dataverse Network (out of Harvard with Gary King) to make data citable and will give the data a “thumbprint” so that if people download the data and use it and don’t credit you, then you can find them

APSR Open Access Publishing: A PKP User Group Workshop

2008-12-08T12:46:00.004+10:00

On Thursday 4 December 2008, I attended the Australian Partnership for Sustainable Repositories (APSR) Workshop entitled, Open Access Publishing: A PKP User Group Workshop.

PKP is the acronym used for the Public Knowledge Project, a research and development initiative directed toward improving the scholarly and public quality of academic research through the development of innovative online publishing and knowledge-sharing environments (see “About the Public Knowledge Project”). PKP was founded in 1998 and is located at the University of British Columbia and Simon Fraser University in Canada and Stanford University in California. PKP has developed Open Journal Systems (OJS) and Open Conference Systems (OCS), open sources software for the management, publishing and indexing of journals and conferences.

Professor John Willinsky, Director of PKP, Professor of Education at Stanford University School of Education and author of, “The Access Principle: The Case for Open Access to Research and Scholarship” came out to Australia for the workshop, as did PKP Developer, MJ Suhonos. My notes from Professor Willinsky’s plenary address appear in this post.

The workshop was held at the University of Sydney and continued on Friday 5 December. I was unable to attend on Friday, but my colleague, Professor Anne Fitzgerald of QUT Law School, gave a presentation entitled, “Constructing open access by effective copyright management” and QUT’s DVC, Professor Tom Cochrane, spoke on “The Institutional Perspective on Open Access – dos and don’ts”. The full program can be viewed on APSR’s website.

My notes from Thursday follow.

The workshop was primarily focused on users’ experiences with PKP software. So we heard from Eve Young, Helen Morgan and James Williams from the University of Melbourne, Bobby Graham from the National Library of Australia and Susan Lever, Editor of the Journal of the Association for the Study of Australian Literature about their experiences with using OJS and from Peter Jeffery of the Australian Association for Research in Education (AARE) about using OCS. Generally the feedback was very positive (especially for OJS) but some suggestions for improved usability (particularly for non-tech savvy academics) were also made. Susan Lever spoke about the exciting opportunity that online publishing offers where articles can contain in-text live links to other sites offering additional information, images and videos, which greatly enrich the experience of the reader.

The university ePress was also a topic of the day. Lorena Kanellopoulos informed us about the management and operation of Australian National University (ANU) ePress and Dr Alex Byrne spoke about University of Technology Sydney (UTS) ePress. UTS ePress publishes the journal, Portal, which I believe was the first journal to be published in Australian using PKP software. The main point to come out of Lorena and Alex’s presentations, to me, was that university ePress costs were not high and that universities can publish their own journals, using open source software and a “publish online with a print-on-demand option” approach, successfully and cost-effectively. Dr Geoffrey Borny, Visiting Fellow in the School of Humanities, College of the Arts and Social Sciences and Member of the Emeritus Faculty at the Australian National University, gave a personal account of what it was like to publish a book with ANU ePress. He was a very happy customer, saying that ANU ePress was efficient and professional, and that publishing online had given him much wider exposure than he expected.

For me, however, the most interesting presentation of the day (aside from Professor John Wilinsky’s plenary address, which is covered in a separate post) was from Andrew Stammer, Journals Publishing Director at CSIRO Publishing. As Andrew pointed out, the CSIRO Publishing Charter creates an interesting creative tension between CSIRO Publishing’s commercial role and public interest role by stating that CSIRO Publishing is to:

Operate within CSIRO on a commercial basis with its viability entirely dependent on the capacity to generate revenue and sufficient return on investment (i.e. CSIRO Publishing must fund itself – it apparently receives no funding from CSIRO or the Australian Government); and
Carry a national interest publishing obligation on behalf of CSIRO within this commercial role.

Despite not agreeing with everything that Andrew had to say (I was highly amused to see that he included “lobbying” amongst the publishers’ roles, right up there with “striving for quality in content” and “nurturing relationships”), I thought that his presentation was remarkably well balanced. He spoke about the OA initiatives of CSIRO Publishing, including the publishing of an OA journal – The South Pacific Journal of Natural Science. He explained the publishing process, being that publishers:

Acquire content;
Review and develop content (facilitate peer review);
Prepare content for dissemination;
Disseminate content; and
Promote content and authors.

Andrew also spoke at length about the costs associated with publishing. And these costs seemed quite incredible to me. For journal publishing of 1162 pages, across 108 articles in 12 issues, printing alone costs $43,166. This cost is quite distinct from costs associated with layout, peer review, promotion or even postage (postage additionally cost thousands of dollars). Much of these costs, I think, could be avoided or massively reduced by online dissemination and print-on-demand services.

Yet what really jumped out at me was a graph that Andrew displayed, which he had acquired from the journal article: Rowlands I and Nicholas D (2006) The changing scholarly landscape, Learned Publishing, 19, 31-55. He showed this under the heading, “What do authors want?” and I was only able to quickly scribble down the order in which the items appeared:

Reputation of journal
Readership
Impact factor
Speed of publication
Reputation of editorial board
Online ms submission
Print & electronic versions
Permission to post post-print
Permission to post preprints
Retention of copyright.

Being a lawyer and an advocate that authors retain copyright in their works and only issue their publisher a Licence to Publish, I was rather concerned about “retention of copyright” being last on a list of “what authors want”.

On Friday morning, I looked up the journal article online, it’s full citation being: Rowlands,I., Nicholas,D. (2006). The changing scholarly communication landscape: an international survey of senior researchers. Learned Publishing 19(1), 31-55. ISSN: 0953-1513.

The article presents the results of a survey “on the behaviour, attitudes, and perceptions of 5,513 senior journal authors on a range of issues relating to a scholarly communication system that is in the painful early stages of a digital revolution” (p31). The survey was conducted by CIBER, “an independent publishing think-tank based at University College London” (p31), in early 2005 and was commissioned by the Publishers Association (PA) and the International Association of Scientific, Technical and Medical Publishers (STM) with additional support from CIBER associates. I was somewhat skeptical about the survey being commissioned by two publishing bodies, but the article’s authors assure readers that:

The views expressed in the Report and in this article are those of the authors alone, based on the data. They do not represent a corporate position, either of the PA or STM. The survey was conducted in a totally unbiased fashion; the research team (CIBER) has no allegiances other than to the data (p33).

The graph in the article is labeled “Figure 7 Reasons for choosing last journal: averages, where 5 = very important, 1 = not at all important (n = 5,513)” not “what authors want”. The actual figures in the graph were –

Reputation of the journal – 4.50
Readership – 4.21
Impact factor – 4.04
Speed of publication – 3.89
Reputation of editorial board – 3.55
Online manuscript submission – 3.43
Print and electronic versions – 3.21
Permission to post post-print – 2.58
Permission to post pre-print – 2.34
Permission to retain copyright – 2.31

In my opinion, the reasons why an author may have chosen to publish in a particular journal in the past are not necessarily indicative of what may influence them to publish where in future, especially in this very changable environment of academic publishing. Yet it is still somewhat concerning to see permissions to post pre and post print versions of the article and to retain copyright rate so low.

The question must be asked why the survey results may have shown these preferences. I think it is important to point out that this survey was undertaken in 2005, so does not reflect the most current state of affairs. Additionally, the authors identify the age of the survey respondents as being a potential influencing factor:

More than a third (35.9%) of the respondents are baby boomers, aged 45 or older, and many of their attitudes will have been formed during a long period of relative stability for the academic sector, at a time when the current difficulties facing institutional library budgets and the scholarly communication market were not so evident (p37).

The authors also write:

Many spoke of the influence of external measures, like impact factors, in determining where they feel they have to publish, sometimes to the detriment of their readers (p41).

However, “readership” and “speed of publication” rated almost as highly as “reputation of journal” and “impact factor” – features which I would argue could be delivered quite effectively by OA journals, even relatively new ones.

My final point in relation to this article is that I perceived an implicit bias against OA publishing, despite the authors’ claims to the contrary. This I perceived from the phrasing of questions with a negative slant (for example, “How disruptive is open access?”) and from comments such as this:

There is a significant relationship between previous experience of publishing in an open access environment and researcher’s attitudes to the value they attach to peer review. Authors who have published in an open access journal are more likely to attach lower value to the importance of peer review (p44).

To me, this statement implies that OA journals do not necessarily use peer review or value peer review, which is simply not true.

Notwithstanding my opinions about how the results of the survey are presented, the article is an interesting read. The OAK Law Project has also conducted its own survey, in 2007, on the attitudes and practices of Australian academic authors in relation to the publication and dissemination of their research. The survey report can be accessed here (or by direct link to PDF).

Seminar: Towards a National Information Strategy

2008-11-21T10:00:00.002+10:00

“Australia is behind many other advanced countries in establishing institutional frameworks to maximise the flow of government generated information and content” – Venturous Australia: Building Strength in Innovation.

On 19 November 2008, I participated in a free public seminar about the Review of the National Innovation System: Towards a National Information Strategy. The half-day seminar was held in the Hyatt Hotel in Canberra and was hosted by the Department of Innovation, Industry, Science and Research and the QUT Law School.

The speakers at the seminar included Professor Brian Fitzgerald and Professor Anne Fitzgerald, both IP professors in the QUT Law School, and Dr Nicholas Gruen of Lateral Economics. You can view the seminar agenda and speaker bios here.

Professor Brian Fitzgerald spoke about innovation as a force that results from the exchange of ideas. He said that collaboration was a key methodology for innovation. Professor Fitzgerald referred to statements made earlier this month by Finance Minister Lindsay Tanner when he said, “The rise of internet-enabled peer production as a social force necessitates a rethink about how policy and politics is done in Australia”. (Reported in the IT section of The Australian). Professor Fitzgerald spoke about how we need to move from a “gated” model of information distribution and knowledge creation to an access based model. He said, “By sharing IP we can harness a powerful new force – mass collaboration”. He also noted Barack Obama’s technology policy, which promotes openness of the internet and openness in government and research.

Dr Nicholas Gruen gave a compelling talk, very similar to his talk given at the CRC-SI Conference this year (see my earlier post). I like the way he defined innovation as “fragility in the face of serial veto” or “fragility amongst robust hazards”. He also gave his own interpretation of the current financial crisis – “The world has created the perfect storm designed to show us the importance of managing information.” One of Dr Gruen’s examples (there were many) of how small amounts of data or information could be used to vastly improve the lives of Australian citizens was what he called the “windows on workplaces” scheme. The idea is this: increasingly, it is becoming important to Australians to have a work/life balance. There are many workplaces that claim to offer a work/life balance, but in reality many do not. And currently there is no way for people to find out the true state of affairs until they actually start working for the company in question – and usually end up working long hours and missing social/family engagements. Wouldn’t it be easy, Dr Gruen says, to ask people to answer a few simple questions – this could be done when ABS is collecting census data – about whether or not their workplace actually delivers on their work/life balance promises? Then workplaces could be ranked according to what they actually provide – not just what they claim to provide – which would create proper accountability and incentives for workplaces to deliver on their promises. The scheme is simple and cheap, but if successful it could have an enormous impact on the lives of working Australians.

Professor Anne Fitzgerald spoke about policy developments in Australia and around the world on access to and reuse of government data and information. These policy developments are charted in a literature review that Professor Anne Fitzgerald is currently undertaking, entitled, Policies and Principles on Access To and Reuse of Public Sector Information: a review of the literature in Australia and selected jurisdictions. (See my earlier post on this).

I gave a brief overview of the research we have conducted in the area in the QUT Law Faculty. I also spoke about Professor Anne Fitzgerald’s literature review, and our new website about access to and use of public sector information (see my earlier post). My powerpoint presentation can be accessed here.

Overall, it was a very successful and informative seminar.

It was also great to hold the seminar in Canberra. Not only did it enable us to engage with many federal politicians, but we also had the afternoon to look around this lovely city. I visited the National Gallery of Australia, the High Court of Australia and old Parliament House, and had a grand old time before my flight back to Brisbane.

New: literature review and website on access to public sector information

2008-11-21T09:57:00.001+10:00

Professor Anne Fitzgerald of the QUT Law Faculty is currently undertaking the massive task of reviewing the literature around policies and principles on access to and reuse of public sector information in Australia and worldwide.

The literature review is divided into chapters according to jurisdiction. This is an ongoing project and Professor Fitzgerald will be releasing the literature review in installments as each chapter is completed.

She has just released Chapter 1: Australia and Chapter 2: New Zealand. Currently, these chapters appear together in PDF form, but I believe they will appear separately later. The literature review so far is extremely comprehensive – chapters 1 and 2 alone comprise 268 pages!

Forthcoming are the remaining chapters – Chapter 3: International; Chapter 4: Europe, UK and Ireland; Chapter 5: United States and Canada; and Chapter 5: Asia.

Currently, the literature review is available in the QUT ePrints Repository (here), but it will soon appear on the new website: http://www.aupsi.org.

http://www.aupsi.org is the website of a new research group with which I am involved – Access to and Use of Public Sector Information (auPSI). auPSI’s mission is to provide a comprehensive web portal that:

promotes debate and discussion about the re-use of PSI in Australia and more broadly throughout the world;
focuses on developing and implementing an open content licensing model to promote access to and re-use of government information;
develops information policy products about delivering access to and encouraging the re-use of PSI;
keeps users informed about international developments in this area; and
assists governments and policy makers on the development of appropriate policy about the creation, collection, development and dissemination of public sector information.

This mission is built on achieving the following three objectives:

greater efficiency in the reuse of PSI throughout the world;
leading to better quality of outcomes;
for greater impact of publicly funded knowledge within our society.

The literature review will be released in full on this website, as will a forthcoming article by Neale Hooper, Timothy Beale, Professor Anne Fitzgerald and Professor Brian Fitzgerald entitled, “The use of Creative Commons licensing to enable open access to public sector information and publicly funded research results – an overview of recent Australian developments”. Keep your eyes peeled.

CRC-SI Annual Conference 2008

2008-11-06T13:14:00.003+10:00

This morning I attended the CRC for Spatial Information (CRC-SI) 2008 Annual Conference. The morning plenary was entitled, "Innovation in Australia" and was chaired by Peter Woodgate, CEO, CRC-SI. The session was opened (via video link) by Senator The Hon Kim Carr, Minister for Innovation, Industry, Science and Research, who noted the increasingly important role of spatial information and who expressed a desire to "restore public good as funding criteria" when the Australian Government is funding research and development.

In this session, I found Dr Nicholas Gruen's talk on Innovation in Australia especially interesting. My notes from his talk are below. They are a little rough - my apologies.

Dr Nicholas Gruen: Innovation in Australia

Information in the economy

What is the economy?

We used to think of the economy as “a thing which makes things”. But we now understand that there is more to economic policy than that. The economy is a “giant trading machine” – trade is important in our (new) concept of the economy. In economic policy reform over the last 30 years – including competition policy – trade is the basic theme.

But the economy is more than THAT.

It is also a “giant risk management machine” and a “giant information management machine”.

We have a mixed/hybrid economy – an ecology of public and private goods = markets are always this, they are not just private goods.

Firms compete according to standards, which are a public good (language, more, property rights and other laws, technical and trading standards); then firms compete in the private goods that fall within the gaps of the public goods.

“It is silly to talk of the internet as a private thing; it is not.”

Information is special – we need markets to harness distributed information and provide incentives.
Frederik Hayek – one of the more important things of a capitalist economy is its capacity to deal with distributed information

But markets dont handle information ideally either – Arrow, Akerlof, Stigliz – Information is a potential public good (reproduction is often costless) – best way for information to circulate in principle is for nothing (in cost) – standards are crucial to the passage of information (in ways that are much more integral than markets for trading for goods) – and standards themselves are a public good

Top down innovation in Government

We’ve been relatively good at it – e.g. secret ballot; HECS etc
We (here I think Nick is referring to the Innovation Review Panel as “we”?) recommended that we should further extend such innovative platforms – for instance HECS

Bottom up innovation in Government

This is the hard part
We looked at mechanisms to maximize the contribution of all levels of public sector innovation and also from the outside
Bottom up Innovation in the states (Vic) – e.g. Policy Idol – emerged from strategy workshop in the Premier’s Department – policy competition for junior officers – has been a very successful program

Then there’s government facilitating innovation elsewhere – the UK is pioneering various “challenge based” means of seeking to foster innovation

How to promote services innovations? -

The inadequacy of the tax concession

R&D tax concession works badly for services – to make it work you need to broaden the definition of R&D, then what happens is that firms in practice work out how to make their perfectly regular business activities fit within the new definition = not fair

Services innovation is often heavily regulated – finance, health, education – e.g. Rismark International

Permission to innovate?

regulation makes innovation difficult

We need innovation facilitation – we have major projects facilitation – we proposed something similar – Advocate for Government Innovation:

operate an Enterprise Challenge program
be a shopfront for “permission to innovate” processes
be bureaucratic champion for highly innovative firms and projects
help disseminate information about public sector information
provide resources to promote more flexible tendering

Innovation is often hard, but freeing up information is harder – e.g. Joshua Gans project to locate public toilets on iPhone – asked Department for permission to use information (which is available online) to make available on iPhone – Department said no because of contractual obligations; copyright issues etc.

The problem of serial veto – information has many hurdles to jump:

IP;
Contract;
permission hurdles;
“we see IP as a property law rather than some form of economic policy (like we now see competition policy)”;
compatibility of formats and systems,;
lawyers professional cultural of risk aversion and control maximization

Fragility in the face of serial veto - e.g. Patents v Open Source; open information v cultural of public service, legal profession and the media

Fragility amongst robust hazards – like trying to coordinating systems within houses: security alarm, lighting, sound, ventilation and air conditioning – we are still not very good at this, still seems like a “futuristic” concept

New website: R18+ for Games

2008-10-30T12:33:00.003+10:00

Electronic Frontiers Australia (EFA) has a new website: R18+ for Games. This is part of EFA's new campaign to support the introduction of a new classification for video and computer games in Australia. Movies can be classified R. They can contain R-rated content and still be sold, borrowed and watched legally. So why not games?

From the website:

Australia is the only Western country without an R rating for computer and video games. If a game is deemed unsuitable for MA15+ by the Office of Film and Literature Classification, it is refused classification and cannot be sold. Titles including 50 Cent, Bulletproof, Postal 2, Leisure Suit Larry, NARC, Singles, Blitz: The League, and Manhunt have all been refused classification in recent years. In 2008 alone, four game titles have been banned: Silent Hill, Fallout 3, Dark Sector and Shellshock 2.

According to recent surveys, the average age of gamers in Australia is around 30 years old.

An R18+ classification would require the unanimous support of all Attorneys-General, and in the past moves to change the current classification have been blocked on the vote of a single state Attorney-General.

EFA is now sponsoring a campaign to have the R18+ classification for games introduced in Australia.

If you support this cause, I encourage you to visit the site. EFA is asking supporters to write to their state Attorney-General and request an R18+ classification for games. Every letter helps!

I should also note that EFA has been a prominent voice against the government's current "clean feed" proposal. Yesterday, EFA Chair, Dale Clapperton, appeared on Channel 7's Morning Show to discuss the issue. You can read more and view the Morning Show clip on Dale's blog.

[Disclosure: My partner is on the EFA board]

Ice TV

2008-10-17T10:45:00.005+10:00

Yesterday, the High Court began hearing the Ice TV appeal. This is a case that could potentially have fairly wide ramifications for copyright protection of data compilations, or none, depending on whether the High Court rules in line with precedent (Desktop Marketing).

For links to commentary around the case so far, see Peter Black's post here.

Ben Atkinson and Professor Brian Fitzgerald of the QUT Law Faculty yesterday posted a paper on QUT eprints, entitled, "Copyright as an Instrument of Information Flow and Dissemination: the case of ICE TV Pty Ltd v Nine Network Australia Pty Ltd". You can read the paper here.

Short Review: The Importance of Being Earnest

2008-10-15T13:44:00.003+10:00

Last night I saw the Importance of Being Earnest at QPAC. It was fabulous and hilarious - the audience (including myself) was laughing throughout. The cast did a fantastic job of hamming it up in true Oscar Wilde style. And the set design and costumes were also amazing. Highly recommended. Catch it while it's still in Brisbane

Open Access Day

2008-10-15T13:36:00.002+10:00

Today, 15 October 2008, is Open Access Day!

Today I attended an OA Day event in the QUT Library, which was sponsored by SPARC, PLoS and Students of Free Culture.

First, we watched the “Voices of Open Access” video, which is available on the Open Access Day website, and the QUT Library Secretariat “Shout Out” for OA video.

We then had some presentations and discussions, moderated by Elizabeth Stark.

Peter Jerram, CEO of PLoS, gave a short introduction. He stated that there is now:

Over 3600 journals in Directory of Open Access Journals (DOAJ)
Now more than 12,000 OA repositories in more than 70 countries
More than 50 mandates for OA in 28 countries

He also gave his thanks to:

Authors who choose to publish in OA
Peter Suber
Melissa Hagemann, OSI
DOAJ
Publishers and editors of OA journals
Research funders such a Wellcome Trust that provide funds for OA journals
SPARC and Students of Free Culture
Advocates of OA

Dr Phil Bourne, Editor in Chief of PLoS Computational Biology, who was presenting from University of California San Diego, gave the keynote presentation. The webcast can be accessed at http://openaccessday.org/program/

Presentation: The Promise of Open Access

SciVee
mash up of academic content
e.g. Pubcast – video integrated with the full text of the paper – but this requires openness in relation to the paper i.e. unrestricted access, Creative Commons licence
e.g. Professional Profile includes all sorts of content: publications, pubcasts and videos etc – profiles are a first step to virtual research environments

BioLit: Tools for new modes of scientific dissemination
http://biolit.ucsd.edu
Mash up between database and journal article
Integrate biological literature and biological database and includes:

A database of journal text
Authorising tools to facilitate database storage of journal text
Tools to make static figures and table interactive

Semantic enrichment of text
Semantic enrichment at the point of authoring – like the spell checker in Word – scans for specific information/word (e.g. name of a gene) and goes out an retrieves information, info appears in column to side of paper, author can choose whether to link to that information or not.

Questions:

Q: How does peer review fit into the new multi-media environment?
A: It is a misconception that peer review does not fit into the OA environment
For Pubcast, the paper associated with the video has already been peer reviewed.

Q: is there a plug-in for the semantic enrichment tool for open office or other platforms that are not Word?
A: Not yet, but probably coming. Will be open source and people can do what they like with it. No restraints imposed by Microsoft

ARROW Repository Day

2008-10-15T11:05:00.004+10:00

On 14 October 2008, I attended the ARROW Repository Day held in Customs House in Brisbane. I presented on the legal issues surrounding management of data for inclusion in a repository. You can access my slides here.

Chris Rusbridge of the Digital Curation Centre in the UK also presented. Some brief notes from his talk are below. Chris was live blogging the day, so if you are interested I suggest you read his notes at the Digital Curation Blog.

Chris Rusbridge (Digital Curation Centre) – Moving the repository upstream

The resistant scholar

Uncertainty, risk - about copyright; about Ingelfinger Rule
Change
Too busy
Doesn’t fit into the way they do things now
Not well motivated by advantages to others
Little in it for them!

Research workflow

many different tasks in parallel
all different stages
teaching (several), research (several), writing up research, writing grant proposals, reviewing papers, administrative tasks etc

On negative clicks

Asked - how many extra clicks are you willing to make to ensure preservation of your record?

Answer - zero

Negative click repository?

Can the repository help rather than hinder?
Towards a Research Repository System? [diagram]

Maybe we could…

help with publisher liaison
support multiple authoring across several institutions
more permissive identity management
support multiple versions
fine grained access control
checkpointing
support supplementary data
provide basic data management capability
provide simple, cross-platform, persistent storage
provide some longevity
provide additional benefits

More on the Brisbane Declaration

2008-10-09T13:36:00.003+10:00

This is what Professor Arthur Sale of the University of Tasmania, one of the chief architects of the Brisbane Declaration, has written about it:

...May I tease out a few strands of the Brisbane Declaration for
readers of the list, as a person who was at the OAR Conference in
Brisbane.

1. The Declaration was adopted on the voices at the Conference,
revised in line with comments, and then participants were asked to put
their names to it post-conference. It represents an overwhelming
consensus of the active members of the repository community in
Australia.

2. The Conference wanted a succinct statement that could be used to
explain to senior university administrators, ministers, and the public
as to what Australia should do about making its research accessible.
It is not a policy, as it does not mention any of the exceptions and
legalisms that are inevitably needed in a formal policy.

3. The Conference wanted to support the two Australian Ministers with
responsibility for Innovation, Science and Health in their moves to
make open access mandatory for all Australian-funded research.

4. Note in passing that the Declaration is not restricted to
peer-reviewed articles, but looks forward to sharing of research data
and knowledge (in the humanities and arts).

5. At the same time, it was widely recognized that publishers' pdfs
("Versions of Record") were not the preferred version of an article to
hold in a repository, primarily because a pdf is a print-based concept
which loses a lot of convenience and information for harvesting, but
also in recognition of the formatting work of journal editors (which
should never change the essence of an article). The Declaration
explicitly make it clear that it is the final draft ("Accepted
Manuscript") which is preferred. The "Version of Record" remains the
citable object.

6. The Declaration also endorses author self-archiving of the final
draft at the time of acceptance, implying the ID/OA policy (Immediate
Deposit, OA when possible).

While the Brisbane Declaration is aimed squarely at Australian
research, I believe that it offers a model for other countries. It
does not talk in pieties, but in terms of action. It is capable of
implementation in one year throughout Australia. Point 1 is written so
as to include citizens from anywhere in the world, in the hope of
reciprocity. The only important thing missing is a timescale, and
that's because we believe Australia stands at a cusp..

What are the chances of a matching declaration in other countries?

Arthur Sale
University of Tasmania

This is what Peter Suber had to say on his blog:

This is not the first call for OA to publicly-funded research. But I particularly like the way it links that call to (1) OA repositories at universities, (2) national research monitoring programs, like the HERDC, and (3) the value of early deposits. Kudos to all involved.

Just announced: Brisbane Declaration [on open access in Australia]

2008-10-08T13:12:00.001+10:00

Following the conference on Open Access and Research held in September in Australia, and hosted by Queensland University of Technology, the following statement was developed and has the endorsement of over sixty participants.

Brisbane Declaration

Preamble
The participants recognise Open Access as a strategic enabling activity, on which research and inquiry will rely at international, national, university, group and individual levels.

Strategies
Therefore the participants resolve the following as a summary of the basic strategies that Australia must adopt:

Every citizen should have free open access to publicly funded research, data and knowledge.
Every Australian university should have access to a digital repository to store its research outputs for this purpose.
As a minimum, this repository should contain all materials reported in the Higher Education Research Data Collection (HERDC).
The deposit of materials should take place as soon as possible, and in the case of published research articles should be of the author’s final draft at the time of acceptance so as to maximize open access to the material.

Brisbane, September, 2008

My presentations - September 2008 conferences

2008-10-07T17:19:00.002+10:00

You can access my presentation at the Open Access and Research conference (Friday's workshop on legal issues) here, and my presentation at the eResearch Australiasia conference (Friday's workshop on eResearch in the Arts, Humanities and Cultural Heritage) here. (Both are in PDF)

ANDS Workshop at eResearch Australasia Conference

2008-10-03T09:55:00.002+10:00

On Thursday 2 September, I attended the Australian National Data Service (ANDS) Workshop at the eResearch Australasia Conference 2008. This was a full day workshop, but the ANDS team did a great job of keeping the workshop interesting and highly interactive, and the day went very quickly.

In the morning, there were a few brief presentations – notably from Andrew Treloar of Monash University and the ANDS Establishment Project and Tracey Hinds from CSIRO. I particularly enjoyed Tracey’s presentation, which at a conference that seemed dominated by IT issues, focused on the social issues and the governance issues involved in data management and sharing research data. My notes from Tracey’s talk are below.

The rest of the day was spent in small round-table discussions. The most lively discussion surrounded questions about what institutions and research bodies need to help them in managing and sharing their data, and how ANDS could help. The group found that there was a need for:

an openly accessible registry of ontologies for metadata of datasets, so that institutions can start using common and enduring metadata to describe their data;
training for researchers, repository managers, research management staff, librarians, archivists and IT staff about data management (including the legal issues surrounding data management), database/repository infrastructure (how to make the database easy to use and sustainable), open access (why should you share your data?) and metadata. It was agreed that the training materials might have a generic introduction component that could be used by all groups, but then there should be different kinds of training materials that provide relevant detail to different groups (e.g. research management staff will have different concerns to IT staff; science researchers may have different concerns humanities researchers);
developing conventions for the citation of data, so that researchers can get credit for sharing their data; and
proper and comprehensive data management plans (DMP).

There was a consensus that data management plans were particularly important and that it would be useful to develop template DMPs which included specific sections that could be added or deleted as appropriate (for example, a section about compliance with privacy laws might be relevant to medical research but not to astronomy research). It was also thought that ANDS could select a few research projects from different disciplines and assist these projects in formulating a DMP. The resulting DMPs could then be made available online for other projects to use and adapt.

In relation to ANDS selecting particular projects to assist, in a broader way, with their data management and release (“engagement targets”) in the hope that these projects might then appear as “exemplar projects” for other groups, it was considered that appropriate selection criteria might be:

broadness of audience and impact;
potential for reuse of data and the ongoing reusability/sustainability of the data;
the project’s willingness to assist others to develop their data management skills;
wide inter-disciplinary appeal;
willingness to transfer data around; and
projects which will have good exemplary value to attract other communities.

I believe that ANDS will make the notes taken from the workshop available online.

Here are my notes from Tracey’s talk:

Tracey Hind – CSIRO

ownership of data should stay with researcher
but still need to manage CSIRO’s data at a higher level – maybe provide an “enabling” service for this rather than dictate a “one size fits all” approach
As of now, CSIRO still does not formally recognise the idea of data management
Real challenges are not technology – it is the human factors – issues of acceptance, understanding, people being prepared to share their data, IP etc
High demand for storage, but storage is not management
Scientists are not working as well across disciplines as the Flagship vision as hoped, much of this is because “you don’t know what you don’t know” – and it’s hard getting insight into other research disciplines
Making data easily discoverable is the key to achieving multi-disciplinary outcomes
Lesson is that data is a complex issue – especially when researchers don’t understand the potential benefits – you need exemplar projects to demonstrate the benefits of data management to get buy in.
CSIRO’s data management vision (eSIM) – CSIRO scientists will be able to…gather, analyse and share scientific information securely and efficiently, leading to greater scientific outcomes for Australia
Four layers – people, processes, technology and governance
People challenges = incentives for deposit into a repository;
Processes challenges = making sure that the work flows created actually support the technology and make things easy
Governance = making sure all of this is properly funded and that data management is a part of the decision making (i.e. make sure researchers have a DMP before they are awarded funding)
CSIRO’s exemplar projects = Auscope project; Atlas of Living Australia; Corporate Communications

eResearch Australasia Conference 2008 - Tuesday morning (30 September)

2008-09-30T11:40:00.002+10:00

John Wilbanks – Uncommon Knowledge and e-Research

Once again, John Wilbanks gave an informative and dynamic presentation. It was geared towards the audience in attendance here at the eResearch Australasia Conference (who are somewhat more IT and science focused than the audience at the OAR conference last week) and so described in detail many aspects of the NeuroCommons Project. If you are interested, I suggest that you see the Neurocommons website. I don’t think any summary that I could provide here would do the project justice. But here are some notes from the beginning of John’s presentation:

Why “eResearch”?

1. eResearch is a requirement imposed on us by the flood of data

the web doesn’t give us the same results for science as it does for culture
so what can we do?
We can…collaborate
Eg - Watson and Crick – their success was composed, by building on a series of blocks of knowledge that were available to them from a range of sources
But humans can’t build models to scale anymore
We need to utilize digital resources

One way to think about eResearch is that it is about:

Finding the right collaborator;
making big discoveries;
getting credit for one’s work

2. We need to convert what we know into digital formats that support model buildings

“the web” – no organising topics – hyperlinking allows us to organise things in a dynamic way
all the data and all the ides: building blocks
open access attempts to solve the legal problems – giving credit where credit is dues; allows humans to read the papers; allows publicly funded research to be accessed by the public
but it doesn’t solve the technical problem of paper-based formats that cannot be read by machines
we need to develop machine-searchable formats

Kerstin Lehnert, Columbia University – New Science Communities for Cyberinfrastructure: The Example of Geochemistry

Kerstin described eResearch as a vision to provide a genuine infrastructure of highly reliable, widely accessible ICT capabilities to assist researchers in their work – ultimately about people

She discussed the cultural issues involved in sharing data. She identified data citation (what I would call “attribution”) as a big problem. How can all scientists and contributors be cited? Many want to be attributed personally (not just by a project), but there are so many contributors and this quickly becomes a big and messy problem. This observation reflects the problem that we at the OAK Law and Legal Framework to eResearch Projects identified in assessing whether Creative Commons licences could be applied to data compilations. Attribution is an important condition of the CC licence. Researchers and research projects need to decide and identify (before applying a CC licence) how the data compilation is to be attributed, otherwise users could run into all sorts of problems and confusion.

Jane Hunter (UQ) - National Committee for Data in Science (NCDS)

A committee of the Australian Academy of Science – established in February 2008; member of CODATA

Mission – to promote enduring access to Australia’s scientific data assets in order to drive national research and innovation
And to provide a National Data Science voice
Encourage and facilitation cross-fertilisations, between specific science disciplines and other data generation/management disciplines

Future activities include engaging with Chairs of other national committees, including looking at what role they can play within ANDS (Australian National Data Service) to support their goals.

Review: Anatomy Titus Fall of Rome

2008-09-30T08:44:00.000+10:00

On Thursday 25 September, I saw The Bell Shakespeare Company’s production, “Anatomy Titus Fall of Rome” at the Cremorne Theatre. The play was directed by Michael Gow and starred John Bell as Titus Andronicus.

I was very impressed with this production. It was contemporary (all actors performed in regular clothes and sometimes wore rather absurd masks) and powerful. I wasn’t quite sure how they were going to depict what is probably Shakespeare’s bloodiest tragedy, and in the end they did it with a lot of blood – a bucket of “blood” centre-stage, to be exact, which the actors flung all over the stage during the course of the production.

The actors did a wonderful job and carried the audience through the entire 2.5 hours without pause and without a hitch. The intermingling of comedy throughout the tragedy certainly helped.

The parts I liked best were where modern objects and references were weaved amongst the Shakespearian ones – books (I think all were actually copies of Shakespeare’s works) were used as weapons and the actor’s monologues frequently featured random modern words thrown in as if to keep the audience on their toes.

However my favourite part was after the play itself, when the actors took some time to talk directly with the audience. This was a wonderful thing for them to do and it resulted in some very interesting discussion. Importantly, we discussed why a play that featured a prominent black character and the violent raping and torturing of a young woman was performed entirely by a white male cast. Several female members of the audience expressed the feeling that they would not have been able to watch the rape scene had it been performed with a female actor, and were consequently glad that a man had played the part. I actually thought the absence of both a dark-skinned actor and a female actor only served to vividly (and almost shockingly) reveal to the audience the racist and sexist undertones in Titus Andronicus, and indeed, in much of the world still today. I was impressed with the way the cast discussed these issues with the audience– they proved to be intelligent and sensitive to the issues. (However, it did not change the fact that the actors could only ever act out their interpretation, as a white male, of what it was like to be a woman or a black man.)

I would highly recommended seeing this production before it closes on 4 October.

eResearch Australasia Conference 2008 - Cloud Computing

2008-09-29T16:43:00.001+10:00

Monday – Plenary: Cloud Infrastructure Services Panel Session

Chair: Nick Tate, UQ
Tony Hey – Microsoft Research
Peter Elford – Cisco
Kevin Mayo – Sun Microsystems
Anne Fitzgerald – QUT

Tony – A Digital Data Deluge in Research

- outsourcing of IT infrastructure
- minimize costs
- small businesses have access to large scale resources
- eg – Virtual Research Environment run by British Library: content management; knowledge management; social networking; online collaboration tools
[similar presentation to at OAR conference]

Peter –

- is cloud computing really a new idea?
- don’t think so – still just software as a service
- so what is the “cloud”?
- do researchers struggle to get access to machines? – probably no
- but do they have problems managing them well – probably yes
- balance between technology, people and processes
- it is a natural evolution and another opportunity
- but not a disruptive technology

Kevin –

From point of view of building these systems:
- need a successful business model
- need to consider privacy and security in a global world
- need to understand technical considerations
- there are a number of services out there at the moment because they have managed to deal with the business model problems….
- …but they may not have effectively dealt with the other issues
- e.g. how you get your data to and from the service
- in the future – we might see: automating the collection and analysis of census data; climate data etc – with barely any interference by people

Anne –
- when we think of cloud computing, many legal issues come to mind: privacy, data security etc
- so far, adapting the law to the digital environment has developed in a very ad hoc manner
- so maybe we would be better to approach it from principles, I prose the following principles:

1. establishing trust in the online environment
- cloud computing = applications that can be accessed anywhere by anyone
- so issues of data security, privacy, reliability of the data and the service
- not much on this (beyond some privacy restrictions) in Australia at the moment

2. equivalence of traditional and online transactions
- need a set of rules to apply to online activities that are equivalent to traditional activities
- at the moment, attempt to transpose current laws in online environment = copyright, electronic transactions act
- but when we look at cloud computing we see this principle is not being applied in a consistent way
- need for clarification of concepts of ownership of data stored on someone else’s equipment
- vast difference between copyright licence given to Google for Google Docs – vs rights that would be given to someone in the real world who is storing and managing someone else’s documents (i.e. they would be given virtually no rights) – why the immense difference just because the storage and management occurs online?

3. Participation of Government in regulating online activities
- would enactment of legislation help or hinder here?

4. We need openness in this environment
- open standards and maybe also open source
- affordability of cloud computing can help to overcome the digital divide
- expectation of users is that they can access the service where and when they like

Development of laws and policies in this environment has occurred primarily at an international level (e.g. OECD – Seoul Declaration), but there is still no international body charged with regulating online commerce

Questions:

Q: Ashley Buckle – Monash: not convinced that this is a solution for him running a small research lab – this is the problem: convincing people that this is for them, especially when they don’t want to be guinea pigs for new projects that may not work

A: Tony – you can only be convinced by something that works for you. There will be a variety of academic cloud services. But the real test is that it is easy to use, can be acquired easily and cheaply, and it should work for you and if it doesn’t work then you shouldn’t use it.

Q: If Microsoft and Google etc operate cloud computing services outside of the USA, does the Patriot Act still apply to them?

A: Not an expert on Patriot Act, but - we need to establish a uniformity or conformity throughout the world, after discussion among countries, and not just have one country’s law dominate, otherwise this could actual be a barrier to trade etc.

eResearch Australasia Conference 2008

2008-09-29T16:38:00.002+10:00

I am currently in Melbourne for the week, attending the eResearch Australiasia Conference 2008, hosted by the Australian Government Department of Innovation, Industry, Science and Research (DIISR) at the Sebel and Citigate Hotels, Albert Park. The conference runs from Monday 29 September - Wednesday 1 October, then there are two days of workshops on Thursday 2 and Friday 3 October. I will be here until Friday. I will try to blog my notes as I go (subject to internet availability) and I will post my overall comments at the end.

OAR conference notes - Andrew Treloar

2008-09-28T15:47:00.001+10:00

Dr Andrew Treloar – ANDS Establishment Project

Blue print for ANDS = Towards the Australian Data Commons (TADC) – developed during 2007 by ANDS Technical Working Group

TADC: Why data? Why now? – increasing data-intensive research; almost all data is now born digital; “Consequently, increasingly effort and therefore funding will necessarily be diverted to data and data management over time”

TADC: Role of data federations – with more data online, more can be done; increasing focus on cross-disciplinary science

Changing Data, Changing Research – e.g. Hubble data has to be released 6 months after creation

ANDS Goal = to deliver greater access, easier and more effective data use and reuse

ANDS Implementation assumptions:

ANDS doesn’t have enough money to fund storage, and so is predicated on institutionally supported solutions
Not all data shared by ANDS will be open
ANDS aims to leverage existing activity, and coordinate/fund new activity
ANDS will only start to build the Australian Data Commons
ANDS governance and management arrangements are sized for the current funding

Realising the goal – need to:

Seed the commons by connecting existing stores
Increase (human) capability across the sector in data management and integration

ANDS structure = four programs:

Developing Frameworks (Monash) - about policies, national understandings of data management, and research intensive organisations = assisting OA by encouraging moves in favour of discipline-acceptable default data sharing practices
Providing Utilities (ANU) – Services Roadmap, national discovery service, collection registry, persistent identifier minting and management = assisting OA by improving discoverability particularly across disciplines (ISO2146)
Seeding the Commons (Monash) – recruit data into the research data commons = assisting OA by increasing the amount of content available, much of it (hopefully) OA
Building Capabilities (ANU) – improving human capability for research data management and research access to data – esp. early career researchers teaching them good data management practices from the beginning = assisting OA by advocating to researchers for changed practices

OAR conference notes - government bodies

2008-09-28T15:44:00.001+10:00

Jenine Borowik – Australian Bureau of Statistics (ABS)

What stimulates particular disciplines to adopt OA when others do not?

This question is particularly pertinent to the ABS – ABS has a mission of promoting informed decision making – but there is an increasingly array of “national interests” – as a result, ABS has realised that we cannot continue to be an island of research and information gathering and dissemination, we need to work with other organisations. Due to this, interest in encouraging a community of organisations to build a rich statistical picture of Australia.

In 2005, ABS removed the barrier of price to access for information. So anyone who accessed ABS website could freely download publications etc. Number of downloads has risen from 1 million per year to 5 million per year. Page views from 50 million to 150 million.

Creative Commons (CC) gives a solution to another barrier – the legal barrier. ABS is interested in using CC. Would like to use something that is successful and widely understood rather than something they have developed that is “just theirs”. Also interested in the way the licences are carried with the particular item of data, and the requirement for attribution. Legal aspects not the primary consideration for ABS, so if there is a mechanism that makes it easy to apply the right licences then that is a good thing.

Jeffrey Kingwell - Geosciences Australia (GA)

GA is a national geographic information clearing house. Collects seismic info, operates national mapping agency etc.

Mission = collect geographic stuff to give to other people to do stuff with.

So why is it so difficult to get the stuff out there?

Finding that due to a number of factors, including IP law and IP government policy, that it is important to align OA policy with IP policy. This is an issue where policies developed in different departments (e.g. IP policy by commercialization unit, OA in another area). GA is trying to construct an IP policy that is consistent with their vision and core function.

Creative Commons Pilot Project 2007-08

Summary:

Have a simple statement of your objective in sharing
align IP policy with that
use simple tools (such as CC) to implement

Dr Alexander Cooke – Australian Research Council (ARC)

Broad principles for an Accessibility Framework:

Publicly funded research outputs and data should be managed in ways that maximise public benefit;
Institutions or individuals receiving public funding have a responsibility to make the results of that funding publicly available
….

What opportunities are there?
The Accessibility Framework offers the ARC and NHMRC (National Health and Medical Research Council) the possibility of strengthening their funding rules to mandate rather than encourage deposit

OAR conference notes - Maarten Wilbers

2008-09-28T15:37:00.001+10:00

Session Six: A Legal Framework Supporting Open Access

Maarten Wilbers – Deputy Legal Counsel, CERN

Large Hadron Collider (LHC) – switched on 10 September

SCOAP = Sponsoring Consortium for Open Access Publishing in particle physics

Fundamental research mandate in particle physics – in a good place to move to full OA publishing of their scientific data and publications – this might be the “tipping point” for scientists in other disciplines

CERN founded in early 50s – OA in high energy physics was “in the cards” from the beginning…because OA is so logical

If you walk around CERN you can see the enormous tools constructed from public funds to help scientists gain greater understanding of small particles – the case for OA can almost be made without a word being spoken

OA in publishing is the future

CERN’s 1954 Convention has laid the foundation for a culture of openness in the dissemination of the organisations scientific work: CERN must perform fundamental research for non-military purpose and make the results of its work generally available

This requirement of openness has helped in the shaping of a string of sequential milestones:

Scientific collaboration across national (and political) boundaries;
Preprint culture and peer review;
World Wide Web;
Computing Grid and Open Source software;
And most recently: promotion of OA publishing.

The legal frameworks governing these activities are supportive rather than restrictive in nature and adapted to collaboration involving multiple participants. Legal issues mostly concern copyright and are generally uncontroversial.

OA is a logical application of the web.

SCOAP aims to convert high quality particle physics journals to OA

Scientific experiments at CERN reflect CERN’s requirement of openness

Collaboration usually laid down in MOU - IPR vested in creating party, wide licensing between all parties involved

Publication of CERN’s work: particle physics pioneered the pre-print culture in the 1950s, scientific manuscripts circulated between scientists for peer review before publication

Main milestone was the creation of the World Wide Web at CERN by Tim Berners Lee

1992 – CERN released the WWW software in the public domain – “CERN relinquishes all intellectual property rights to this code, both source and binary form and permission is granted for anyone to use, duplicate, modify and redistribute it”

Why OA (from CERN’s perspective)?

High quality journals, offering peer-review, are the [High Energy Physics] HEP’s community’s “interface with officialdom”;
Depending on definition of HEP, between 5000 and 7000 HEP articles published each year, 80% in 6 leading journals by 4 publishers
Subscription prices make the current model unsustainable. Change is required
HEP is a global undertaking and OA solutions should reflect this.

CERN’s potential solutions for OA publishing:

Articles free to be read for all
Tender process will result in price of article; linked to quality
….

Legal issues – keep things as simple as possible!

A strong example if OA publishing – the design of LHC published in OA journal (Journal of Instrumentation..?) just recently

OAR conference notes - Tony Hey

2008-09-28T15:26:00.002+10:00

Tony Hey – Cloud Computing

Rationale for Cloud computing

Outsourcing IT infrastructure
Minimize costs
Large cloud/utility computing provides can have relativel very small ownership and operation costs due to the huge scale of deployment and automation
Small business have access to large scale resources

Example – Amazon Web Services
= Simple Storage Service (s3) – storage for the internet; simple web service interface

Example – smugmug.com
= Profitable, debt-free company because it does not have any hardware resources; it only uses Amazon hardware (for free, in the cloud)

Examples from Microsoft:

Live Mesh

A PC in the cloud
Can synchronize PC in the cloud with your laptop, your mobile devices such as phones or music players etc

Office Live Workspace

Can upload documents for other people to work on
Other people can download and use those documents that you choose to share

The future = software plus services for science

Expect scientific research environments to follow similar trends to the commercial sector

Example - Trident Scientific Workflow Workbench

Toward a Smart Cyberinfrastructure

Collective intelligence

Example – last fm.

A world where all data is linked…
…and stored/processed/analyzed in the cloud

OAR conference notes - Richard Jefferson

2008-09-28T15:21:00.001+10:00

Richard Jefferson – Opening the innovation ecology

Public good is not an abstract

Yochai Benkler Stack: Physical-Code-Content-Knowledge

We should ask the question: if we are successful in that everything is made OA – what then? We must make sure that the knowledge we generate will enable people to act on this knowledge and use it for benefit

The post-Yochai Benkler Stack = Physical-Code-Content-Knowledge; Capability to Act

We now have a system that is so opaque and has embedded in it intrinsic “inpermissibility” that it is not useful and capability to act on it is restrained

CAMBIA – focused on innovation system reform

BiOS Initiative – launched early 2005 with an article in Nature, biology open source (biological innovation for open society);

Patent system – actually a system based on open disclosure
This is not about rhetoric – it is about the practical goal of efficiency

OS – open source; open science; open society (need inclusiveness)

Used example of “golden rice” – which was once “poster child” of biological engineering - development of rice for third world areas where there was vitamin A deficiency in food so children were going blind, but the result used so many different products and processes that were patented that eventually the golden rice was not able to go ahead

Patent Lens – develop harmonized structure and infrastructure for searching patents; embedded metadata about patents; web 2.0 quality decision support about patents;

Efficiency = minimise tainting of product from incorporating other people’s IP (usually unknowingly) and maximise capacity for adoption – can try to do this by improving people’s knowledge about what IP is incorporate and enhance decision-maker’s ability to make good decisions for public good

Persistent, pervasive, jurisdiction agnostic activity = platform for community collaboration and transparency

Proper parsing, visualization and decision-making

Initiative for Open Innovation – increasing the equity, efficiency and effectiveness of science-enabled innovation for public good

Defining open innovation:
Open = transparent
Open = inclusive

Web based tools for scientists funding agencies, public sector and innovation enterprises to mine the patent world

Build patent lens into Nature and PLoS biology – to show, where readers are reading an article about a particular invention, whether the author has filed a patent on this

OAR conference notes - Alma Swan

2008-09-28T15:15:00.002+10:00

Alma Swan – Open Access: The Next Five Years

Where we are now:

Focus = research articles
Latest estimates show level of OA for research article is still <20%
Expect even more attempts by (some) publishers at obstruction:
Arguments often fallacious – best way to deal with them is calmly and rational
Arguments sometimes dishonest
Argument always wrong to argue that publicly funded research carried out by public researchers should not be made publicly available because it would hurt a private/commercial player
Weapon: copyright
Wield it, now, against the interest of academic and the paying public
Reason for the panic: OA mandates

Open Access policies:

a lot of almost-there well-meaning policies
come in various flavours; not all taste good to everyone
NIH
But we are on an upward trend
Mandates work; voluntary policies do not
Because the outcome makes glorious sense for the research institutions and funders
Repositories are also management tools
And marketing tools for a university
Helps the university make the best use of the web

Repositories: state of play

growing at a rate of around 1 per day
Alma cannot believe that within 5 years there will not be a serious university that does not have a repository and does not actively use it

It is a completely resolvable issues
Yet it is the major barrier to simple acceptance and practice of OA by researchers
Copyright futures – actually a tendency towards the legal strengthening of copyright in general
Research community practice will demonstrate the way copyright is applied to scholarly articles is out of date
Author agreements that retain copyright (licence to publish)
New ‘liberal’ practices with respect to publishing findings
Anyway, OA is completely compatible with copyright

New, ill-defined issue: research data

increasingly the primary output in some fields
data have yet to be properly recognised as research output
increasingly the subject of mandates, too

New research approaches…

…depend on OA
e-research (big research) – collaborative research – needs OA to make it work properly
but so does collaborative ‘small’ research
interdisciplinary research
web 2.0 outputs becoming a norm
early examples of institutional solutions – institutions have to start to help things happen – VIVO: Virtual Life Sciences at Cornell (a system that links up within the uni: the repository, the library, personal websites of academics etc);

Pragmatic Solutions:

joining articles, data and other related outputs in better ways
more (and more) work on standards
‘surfacing’ web content – i.e. better way to show off OA content
new services built across repository networks
clearer vision of how to reach a repository-based scholarly communication system
new technologies need to show content in a form that researchers (and machines) can exploit (XML) – needs to be semantic/exploitative technologies
there are already publishers who use a repository as a means of submitting the paper to the publisher for peer review

Wrong solutions: impact and assessment:

for too long we’ve used a proxy measure to measure impact (journal impact factor), but for years it has been use to advance (or retard) careers
with an OA corpus, multiple metrics and indicators are possible
e.g. in the health sciences in the UK, move to measure impact by where it leads in terms of new medicine, new treatment NHS spending etc, not just the journal where the article is published

Mahatma Gandhi:
First they ignore you
Then they laugh at you
Then they fight you
Then you win!

Everything “open” started as a big joke. But things are changing….

It’s been too easy to dismiss the issue:

institutions have been notably disengage
scholarly communication has been low on the agenda
yet it is central to the core mission of a university

Questions universities will be addressing:

Are we happy with current quality and impact measures?
What do we want?
What new reward systems can we build?
How can we use the internet better?

Commentators: Prof Tom Cochrane (QUT) and Derek Whitehead (Swinburne)

Prof Tom Cochrane

Mandates:

Mandates are only likely to succeed if they are clearly purposed in terms of scope – there must be clarity about what outputs the mandates will catch, where the outputs will be and for what purpose, and clarity at a policy level about whether it is in itself sufficient to make a rule (mandate) – at QUT it was thought not to be enough, that it had to be implemented cleverly, which is where the library came in in developing the repository properly

Behaviour:

We need to look at the system of rewards – until we do something about incentives for data curation, then they wont happen or will happen accidentally and haphazardly

Copyright:

A large number of people are rendered more uncertain about copyright than about anything else. Copyright must be dealt with in this space – we need clarity about it as an enabler not an obstacle

Trends:

One trend that is contradicting the nature of research, is that the semantic web tools are forcing questions about how collaboration is to be managed. There rush to develop tools where management is at a machine level rather than a human level. But unless we solve some of the legal and regulatory issues that are thrown up by the use of these tools then we will keep being hindered in our OA efforts.

OAR conference notes - John Wilbanks

2008-09-28T15:09:00.002+10:00

John Wilbanks (of Science Commons) – The Future of Knowledge

Knowledge is a set of building blocks – value is not that much until you start to put it together with other ideas and knowledge

Ideas and knowledge want to be connected

2 futures – we get to choose which we build – (1) only the people who have money have access to the knowledge (2) one in which there is an open network

(1) Knowledge brings revolutions

The past of knowledge = “Human-scale knowledge” – the scholarly canon (journals) – knowledge was human-organised and human-structures
How did this knowledge bring a revolution?

Moving to a world where knowledge acquisition is faster, smaller, cheaper and more robotic. Moving from a world where humans generate the scale of knowledge to a world where machines generate the scale

We have an implicit network that is already there for knowledge, but because we are generating it so quickly and on such a large scales, we are coming up against barriers - legal (copyright, DRM), technical (still use paper based formats online that cannot be searched by machines – i.e. PDF), business (publishers make money from closed access and we don’t yet know how they can make money or build business models around open access), social (scientists still get rewarded for being closed) - that we never encountered before

Over-atomised knowledge – smaller and smaller questions – primary output is a paper – John argues that these are not the primary vehicles for knowledge in a digital world

Incremental advances via technology – no big risks to achieve great advances anymore because you don’t get rewarded for making these risks, in fact you come up against huge legal barriers that prevent you using other research to take these risks

(2) We need to make systemic changes that connect knowledge

e.g. “the commons” – a number of different meanings: (1) land we hold in common e.g. public footpath; right to do research – rights of way across private property; (2) no copyright – things we all own

we are coming from a world where it was hard to be a creator and disseminate your work. We are not in that world anymore. There is now a disconnect between the copyright laws that Disney wants and the copyright laws that we as individual creators want. This is where the commons can make a systemic change.

Systemic change about the way we think about how we share knowledge – not just paper-based formats in a digital form – forces us to use technologies that are immediately outdated – what kinds of technology can we used instead? – a network of devices (layers: physical; code; content – there has been many developments of openness in these layers, but we have also seen an imposition of control in these layers (copyright)) – do we need new layers? Knowledge layers; graph layers etc. Info atomization kind of forces our hand to do this. Knowledge accessed needs to support the questions being answered (eg – when you type a query into Google – it tells you to read thousands of papers – this is not the ideal answer)

Copyright is incompatible with ideas connecting to each other.

(3) The disruptive force of connected knowledge

“guild” culture (as in historical sense of guilds, where the crown put limits on people not in the guild from weaving etc)

the way we do science actively discriminates against crowds and the wisdom of crowds

knowledge can be democratized: programming; creativity; buying and selling
it is easy, cheap and free

there are no office superstores for science; there are no internet marketplaces for science…but they are coming

destroying a guild culture of knowledge…what will come after it?

Creating a network culture for knowledge

• are we going to “watch” the knowledge like tv, or do something with it? – in the future of knowledge, we should do stuff with our knowledge rather than just consume it

Commentators: Dr Terry Cutler and Prof Mary O’Kane

Dr Cutler –

proud of the focus in Innovation Review on open access; however, first an apology and explanation – there is a difference between web version and print version – both supposed to be released under CC but were not (copyright assertion for Dr Cutler instead) – now attempting to have this rectified for the web version.

Key assertions from the report = about investment in people; global integration; flows of information and the freedoms to innovate

2% challenge of Australia – at best, we have a 2% share of global knowledge generation, and we don’t pay enough attention to the other 98% and how we access this – as a country we will always have an interest in an open network because we derive the most benefit from it

flows of information = communications. Communications theory and legal principles around communications were always based on connectivity. Open access is really just an extension of these principles.

Challenge – who really “owns” this problem of driving solutions (particularly at a government level)? – we need the government to address accessibility issues and articulate a national innovation policy – someone needs to take responsibility for this at the centre of government

Too much emphasis on “protectable” knowledge and not enough on informal networks and social networks that underpins the generation of an innovative community – need to open up access to that tacit knowledge and put social networks back into science and technology

Professor Mary O’Kane –

(1) is the future that John is talking about possible? How do we get to participatory science?

Can Australia lead this move into a participatory culture? We need to change the incentives for scientists. We need to change the social culture and drivers generally. So what are the drivers? Usually the intrinsic values are strongest (i.e. solving problems) not money. So how can we celebrate these intrinsic values? Across the university sector we need to reward people for open publishing.

(2) Issues that arise if you start to get the participatory culture going?

Problems that arise when you use the networks that have been built automatically, is that it is very hard to “probe the node” and know what is in the network. But does the human need to know or can we leave this to the machine? Do we need to know the knowledge? And at what level?

Questions/comments

[John: we need to lower the cost of failure to increase the rate of innovation (i.e. in the context of start-ups)]

(1) Richard Jefferson: the power of the guild is building value, trust and quality control and we shouldn’t erode that

John (response): we don’t need to get rid of guild completely, but we need to build another layer where we can build on the knowledge of everyone – but we can still have trademarks etc to control quality

Mary (response): I’ve always wondered why we don’t use the internet more for structured, controlled discussion about things – there is no reason why we couldn’t and that would also help control quality – by generating discussion

(2) Roger Clarke – referring to the “tacit knowledge problem” seems to assume that the way the human mind works can be reduced to a computer-based system and the problem is that the mind does have a generic model that we can all grasp but we just haven’t transferred it over to the computer yet. But everyone thinks differently.

John (response): I don’t think we can actually encode how the mind works, but we need to make information available. That is the importance of openness – you need to be able to read, criticize and comment on what I put up, and that is how we see the reflection of the many different minds at work. Getting it into the computer means we can start accessing that information and competing on it using our brains rather than competing on our access to computers.

Open Access and Research Conference - general comments

2008-09-28T11:32:00.003+10:00

From Wednesday 24 September - Thursday 25 September, QUT Faculty of Law and the OAK Law Project ran the Open Access and Research Conference at the Stamford Hotel, Brisbane.

I think the conference was a great success. There were a great number of attendees both from Australia and abroad who were extremely knowledgeable about open access, e-research and the digital environment. These attendees included John Wilbanks of Science Commons, Alma Swan of Key Perspectives, Richard Jefferson of CAMBIA and Patent Lens, Professor Brian Fitzgerald and Professor Anne Fitzgerald of QUT Law Faculty, Maarten Wilbers of CERN, Professor Stevan Harnad (via video link), Tony Hey from Microsoft, Carolina Rossini formerly of Creative Commons Brazil and now based at Harvard's Berkman Center for Internet and Society, Senator Kim Carr (via video link), Professor Warwick Anderson of NHMRC, Dr Andrew Treloar of the ANDS Establishment Project, Frederika Welle Donker of Delft University in the Netherlands, and many many more. The quality of attendees at the conference meant that the discussions which followed each presentation and continued into the morning tea and lunch breaks were some of the most interesting I have heard to date.

Senator Kim Carr's opening address strongly endorsed the principles of open access to knowledge and information, and referred to the recommendations made in the recently released green paper on the Review of the National Innovation System ("the Cutler Review"), of which there was much discussion generally at the OAR Conference. (For the relevant recommendations, see my earlier post).

On the first day, John Wilbanks gave an enlightening presentation that discussed how the internet is "democratizing knowledge" by breaking down the "guild culture" of experts on a particular topic and replacing it with a "network culture" where experts still have a role but where others have more input as well.

Then, Professor Brian Fitzgerald of QUT law faculty announced the upcoming collaboration between QUT and Richard Jefferson of CAMBIA.

On the second day, Maarten Wilbers of CERN fascinated everyone with pictures of the Large Hadron Collider (LHC), which has just been turned on, and with an intriguing history of CERN and the role it has played in the open access and e-research movements, right from the creation of the world wide web by Tim Berners Lee through to the LHC today.

I was also very interested to hear from Frederika Welle Donker, who took us through the developments in Europe in relation to open access to public sector information (PSI) and materials. In particular, she discussed the European Union PSI and INSPIRE Directives.

The presentations of all participants will be available shortly on the OAK Law website.

Queensland Premier's Literary Awards

2008-09-17T11:49:00.004+10:00

I am pleased to announce that a good friend of mine, Amy Vought Barker, has won the Queensland Premier's Literary Award in the Emerging Queensland Author category for her manuscript, Omega Park. Amy's manuscript will now be published by University of Queensland Press (UQP).

The full list of winners were reported in today's Courier Mail, or you can visit the Department of the Premier and Cabinet's website here.

Congratulations Amy!

[Update - see this post at Literary Minded]

just a quick note...

2008-09-09T20:41:00.000+10:00

...to say that I have updated my CV to reflect that as of yesterday, I am now admitted as a legal practitioner in the Supreme Court of Queensland. There is a link to my CV in the right hand bar.

Update: conferences

2008-09-09T19:46:00.000+10:00

This is just a reminder of the upcoming conferences at which I will be presenting:

Open Access and Research Conference

hosted by the OAK Law Project and QUT Faculty of Law, at the Stamford Plaza Hotel, Brisbane, Queensland, 24-26 September 2008

I am leading a workshop, with Scott Kiel-Chisholm and Anthony Austin, on Friday 26 September, 9:00am - 12:00pm, entitled, "Practical steps for handling copyright, IP and other legal issues.

Register here

eResearch Australasia 2008

Sebel and Citigate Hotels, Albert Park, Melbourne, Australia, 29 September - 3 October 2008

I am presenting in a workshop on Friday 3 October, entitled, e-Research in the Arts, Humanities and Cultural Heritage. My presentation will be on "Academic Authors, Publishing and Open Access in an e-Research Environment".

Register here

Innovation Review

2008-09-09T15:51:00.000+10:00

venturous australia, the Report on the Review of the National Innovation System has just been released: see here.

I have yet to read the entire 228 pages of it; however, on a first skim, the interesting recommendations from my perspective are:

Recommendation 6.5
To build concentrations of excellence, encourage collaboration and achieve better dissemination of knowledge, introduce additional funding support for university and other research institutions to partner with each other and with other research organisations (national and international). Discussions about additional levels of support should occur during the projected
round of compact negotiations.

Recommendation 7.7
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:

utilise the principles of targeted transparency and the development of auditable standards to maximise the flow of information in private markets about product quality; and
maximise the flow of government generated information, research, and content for the benefit of users (including private sector resellers of information).

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.

Recommendation 7.9
Funding models and institutional mandates should recognise the research and innovation role and contributions of cultural agencies and institutions responsible for information repositories, physical collections or creative content and fund them accordingly.

Recommendation 7.10
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.

Recommendation 7.14
To the maximum extent practicable, 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. This should be done whilst the Australian Government encourages other countries to reciprocate by making their own contributions to the global
digital public commons.

Recommendation 12.1
The Prime Minister’s Science, Engineering and Innovation Council should be replaced by a new National Innovation Council, chaired by the Prime Minister, and supported by a small but high level Office of Innovation. An International Innovation Advisory Panel would be formed to provide advice to the Council on international engagement.

Recommendation 12.8
That common metrics, performance indicators and mechanisms for collecting and sharing data be developed and adopted by all jurisdictions.

Recommendation 12.13
A National Centre for Innovation Research should be established to advance knowledge of the innovation system through high quality, independent research which is strongly relevant to policy and practice.

I am particularly excited to see Creative Commons licensing appear in Recommendation 7.8 and the notion of the "global public commons" in Recommendation 7.14.

I will post more on my thoughts about the Innovation Review once I have read the Report properly

Quentin Bryce sworn in as GG

2008-09-05T11:47:00.000+10:00

ABC has reported that Quentin Bryce has just been officially sworn in as Australia's first female Governor-General.

The ABC reports: "Ms Bryce broke new ground as one of the Queensland's first female barristers and law lecturers. She was also a federal sex discrimination commissioner and human rights advocate".

I think this is a good day for Australia, Australian women, and Australian women lawyers in particular.

2008-08-20T14:53:00.000+10:00

Over on Boing Boing, Cory Doctorow has posted an entry entitled, "Human rights worker: JFK's secondary screening procedures are "human rights abuses" (the post is dated 18/08/08).

In order comment effectively, I am reproducing the post in full:

An American human-rights worker was detained by the DHS at JFK when she returned from her holiday in Syria. She found herself in a Kafka-esque nightmare room crammed like a cattle-car with Americans and foreigners seething as they were abused, ignored, insulted (and sometimes deported) by the US government's representatives. So much for public diplomacy.
No one who had been detained knew precisely why they were there. A few people were led into private rooms; others were questioned out in the open at desks a few feet from the crowd and then allowed to pass through customs. Some were sent to another section of the holding area with large computer screens and cameras, and then brought back. The uninformed consensus among the detainees was that some people would be fingerprinted, have their irises scanned and be sent back to the countries from which they had disembarked, regardless of citizenship status; others would be fingerprinted and allowed to stay; and the unlucky ones would be detained indefinitely and moved to a more permanent facility.
There was one British tourist in the group. Paul (also not his real name) was traveling with three friends who had passed through customs soon after their plane landed and were waiting for him on the other side of the metal barrier; he suspected he had been detained because of his dark skin. When he asked if he could go to the bathroom, one of the guards said, "I wouldn't." "What if someone has to?" I asked. "They will just have to hold it," the guard responded with a smile. Paul began to cry. I watched as he, over the course of four hours, went from feeling exuberant about his trip to New York to despising the entire country. "I speak the Queen's English," he said to me. "I'm third-generation British. I came to America because I've always wanted to come here, and now they've got me so scared that all I want to do is go home. We're paying for your stupid war anyway."
I once got pulled out for secondary screening at the Australian border. They brought my pregnant wife a chair and a glass of water, were friendly and professional and prompt, and never made me feel anything other than welcome. They thoroughly investigated me without ever making me feel like a crook. It took all of 10 minutes. It doesn't have to be this way.

I can report a similar experience dealing with airport security in the United States. While I was never required to wait in a crammed room where I was not permitted to go to the toilet, I did have to suffer through an extraordinary amount of security procedures every time I passed through a US airport.

I spent the first half of 2008 travelling through Europe, Canada and America. There were no troubles in Europe. But America was a different story altogether. I was travelling on an around-the-world ticket, a condition of which was that I could not fly into the same airport twice. This meant that I was essentially travelling on a one-way ticket, as far as US airport security was concerned. And apparently, foreigner + one-way ticket = terrorist.

I passed through, I think, six airports while I was in the US. And without fail, every time I was required to endure secondary screening procedures. These procedures involved:

having airport security search through all of my personal belongings (very roughly, I might add, and the one time I tried to catch one of my belongings before it fell off the table after the security officer had cast it aside, I was loudly and harshly berated for touching my own property);
being required to answer a series of intrusive questions;
being fingerprinting;
having my irises scanned;
being patted down by security personnel (I was asked if I wanted this done in a private room, but I refused, preferring to have witnesses while I was touched); and
standing in a little glass cubicle where air was blasted on me to see if I had any explosive substances on my clothes or person (it felt like a gas chamber).

I was treated like a criminal, and like "Paul" from the UK, it completely turned me off future visits to the US. After the first airport screening procedure, I found that I became extremely nervous each time I had to go to the airport, which probably just made me look even more suspicious.

But probably the most insulting thing, was that each time I was told that the process by which I was selected for secondary screening procedures was "random". Please - six times in a row? My partner, who was travelling on the same type of ticket but on an American passport (he was born in Hawaii) was not subject to the same treatment. And whenever I ventured to ask the other people waiting in line to be security screened whether they were American, there was never a single American person in line.

My relief upon returning to an Australian airport, where the security personnel are friendly (they even crack jokes), respectful and efficient, was immense. My experience in the Australian and NZ airports has always been pleasant (mirroring Cory's own experience), and I can only hope that this is because Australian security personnel treat travellors better in general, and not just because I was travelling on an Australian passport.

APSR Workshop – The Data Management Plan: Putting Policy into Practice

2008-08-18T11:52:00.000+10:00

On Friday 8 August 2008, I attended the Australian Partnership for Sustainable Repositories (APSR) Workshop, “The Data Management Plan: Putting Policy into Practice” at the University of Melbourne.

Professor Anne Fitzgerald, with whom I work at QUT, gave an excellent and very well received presentation on the legal issues surrounding data management. Her slides can be viewed here.

Here are my notes from the workshop (made roughly during the day):

Data management plans: from idea to reality (10:15am – 10:45am)

Dr Markus Buchhorn (ANU) for Karen Visser

We need enduring systems that outlive projects and programs
Individuals are human – seven deadly fears:

fear of missed “nuggets” in their data – milk it for everything, for ever and veer
fear of missed errors
fear of unknown custodians/stewards
fear inappropriate leaks (privacy/ethics) – can ruin trust relationships with others
fear the cost of effort
fear lack of recognition
fear trusting someone else's data

Plan ahead – help researchers to help themselves as far as possible
Build relationships of trust with researchers – engage with researchers as early as possible

Mark Euston (ANU – Information Literacy Program)

tasked with developing a training course, workshop and online, for early to mid career researchers, on Data Management Plans (DMP)
Objectives of the course -

what is Data Management (DM)?
benefits and requirements
raising awareness of DM services
DMP

Manual based on Guidance on Data Management (UK) and Guide to Social Science Data Preparation and Archiving
get researchers in by stressing how they can work with their data more effectively and efficiently

What's happening at... (11:10am – 12:30pm)

Belinda Weaver (UQ)

Issues for the data survey:

no 'joined up' services
no help
inequity – not fair – nothing works etc.
costs
lack of training (people felt insecure about what they were doing)
uncertainty
no incentive, no rewards

Recommendations from focus group:

standardised DM template for funding applications
legal advice centralised and accessible
service focused support teams for research projects – specific to the discipline
survey of all existing data
central data storage system
develop a clear UQ data management policy
templates

Central management of research data - issues:

trust
data integrity
accidental disclosure
control
sharing
re-use (want to know what use has been made of their data – auditing – and if they give data to a person for a particular purpose, they want to know if the person doesn't end up using the data or not using it for the particular purpose)
the long term

Wish-lists:

clear policy and guidelines
account manager
specialists on teams (want to know who to go to for advice)
career path?
rewards
templates for everything
funding to do it properly
advice and consultancy
institutional support
tools (but they want to be told only when they want to be told, and be told how they want to be told)

presentations from workshop available at: http://www.library.uq.edu.au/escholarship/orca.html
UQ developing a expert curation advice service

Lyle Winton (Uni of Melbourne)

Uni of Melbourne have a research DMP template
looking at training for undergrad students
looking at how to keep this up to date
possible data management registries
from 500 charges of research misconduct, 40% could have been avoided by good data management

http://www.esrc.unimelb.edu.ay/dmp/references.html

Suzanne Clarke (Monash)

Monash has a Data Management Committee
Research Data Management Toolkit for librarians so they know what to talk about to researchers
Identified needs: more education required for researchers on statutory requirements for data, IP and the ownership of research data

Gillian Elliot (University of Otago – NZ)

As far as she is aware, NZ has no policies surrounding data management
so NZ in quite a different position to Australia
Survey in 2007 - researchers in NZ had a lot of data and a lot of stuff loosely stuck together that were unpublished and hard to classify – need help with data management
data management and copyright concerned researchers – 48% of survey respondents
Atlas of Living Australia; Convention on Biological Diversity; Department of Conservation and Land Information New Zealand; Land Care NZ; National Vegetation Survey Databank

Dr Ashley Buckle (TARDIS – Monash University)

TARDIS is a multi-institutional collaborative venture that aims to facilitate the arching and sharing of raw X-ray diffraction images
Protein Data Bank – growing exponentially – too much data?
Benefits to making raw data available – experiment reproducability/validation

Discussion Groups: Group 2 – Processes for Data Management Planning (1:15pm-2:45pm)

How do we make DM part of the usual research practice?

How can we make raw data count as a citation? - for funding etc. - this is very important, if there is greater recognition of the value data in itself as a citable object then researchers will be more willing to manage their data properly.

Ashley Buckle – we need “data journals” - essentially the same as a database but greater recognition

DM needs to give you a reward at the end that is at the same level as rewards from publication

Better tools – build the researchers tools that are so good that they do not actually realise that they are managing their data.

Reporting back to main group and discussion (2:45pm-4:00pm)

Roles, rights and responsibilities

Anne Fitzgerald's domains of responsibility
Policy plus principles
disseminate research data as widely as possible
develop practical toolkits
risk management for universities
simple for universities to completing
ongoing legal and policy advice
insert data management requirements into research proposals and grants
get recognition via NHMRC, ARC and ERA to provide regulatory and reward structure
need for national centre for legal policy and advice in regard to the data lifecycle including reuse
universities to incorporate data management into risk management strategies
provide pragmatic family of licences/responsibility statements (like CC) to identify roles and policies
DMPs to be built into research project formulation and management

2. Processes for data management planningbetter tools and incentives: build better workflows

allowing data management in their modelling: harness tools onto repositories
citation: make sure that citation of datasets happens and is rewarded, as incentive for researchers to create good data
persuade ARC to make explicit expression of intent in ERA eventually to credit data citation (at least down the road). This as formal submission from this workshop
infrastructure: development of a COHERENT NATIONAL NETWORK of repositories, emphasis on discipline specific repositories (though institutionally supported) as a centre for research activity

3. Making it work

know what you don't know
each institution needs to:

identify the needs of its researchers (possible role for ANDS here)
map the available services (needs to happen locally)
strategically target the gaps
identify candidate services to drop to fund this

Make it easy
provide a visible point of contact for the users
not necessarily through one channel only
not necessarily a one size fits all solution
embed regular formal training in how to use services
needs to be as easy to use as “MyFlickBook”
outreach, marketing, publicity
Start small and scale

seed the service and gradual expand it as understanding grows
start with young researchers and use peer group pressure over tie
get good examples going first to generate some quick wins
use growth in tandem with policy

Reward innovators in shared services

provide annual performance incentives for going beyond meeting strategic goals
encourage shared services staff to learn new skills
create new job descriptions for new people in management

Interesting post (and comments) on women's Olympic uniforms

2008-08-15T13:24:00.000+10:00

See Hoyden About Town here.

Update: Remix My Lit

2008-08-15T11:45:00.001+10:00

In July, I wrote about Remix My Lit, the new project by the Creative Commons Australia team.

Well, Remix My Lit has proclaimed August to be "Remix Month".

There are now 9 new short stories on the Remix My Lit website, licensed under Creative Commons Attribution Non-Commercial ShareAlike licences. New authors to contribute include Kim Wilkins, Phillip Neilsen, James Phelan and Danielle Wood.

It’s now up to you to remix these stories, making sure to acknowledge the author, that your remix is not for commercial use, and your new work is available for others to remix.

Email your remixes to anthology@creativecommons.org.au before 31 August to have your story posted on the website and for the chance to be published in the hard copy anthology alongside your favourite author.

Book Launch: Legal Framework for e-Research: Realising the Potential

2008-08-15T09:35:00.000+10:00

On Thursday night 7 August 2008, I attended the book launch of Legal Framework for e-Research: Realising the Potential, edited by Professor Brian Fitzgerald and published by the Sydney University Press (SUP).

The book was launched in the new University of Sydney SciTech Library (with a delightfully space-age interior in all shades of green) by Dr Michael Spence, who has recently returned to Australia from Oxford University (where he was the Head of the Social Sciences Division of the University of Oxford, Fellow and Tutor in Law at St Catherine's College Oxford, and CUF Lecturer at the University of Oxford.) as the new Vice-Chancellor of the University of Sydney. The book launch itself was quite lively and was attended by some prominent figures in the legal and e-Research space, including Professor Brian Fitzgerald and Professor Anne Fitzgerald, Dr Richard Jefferson of CAMBIA, Graham Greenleaf of AustLII, Professor Gillian Triggs of the University of Sydney Law School and Christoph Antons.

The book is a compilation of conference papers from the Legal Framework for e-Research conference that the Legal Framework for e-Research Project at QUT ran last year (2007) on the Gold Coast. It's essentially a who's who of experts in the issues surrounding e-Research and includes chapters from:

Dr Terry Cutler (who is currently chairing the Australian Government Innovation Review);
Dr Chris Greer (NSF);
Professor John Unsworth;
Paul F Uhlir and Peter Schroder;
Professor Paul David and Dr Michael Spence;
Claire Driscoll (NIH);
John Wilbanks (Science Commons);
Fred Friend (JISC);
Professor Fiona Stanley AC;
Dr Richard Jefferson (CAMBIA);
Andrew Hayne (Privacy Commissioner);
David Ruschena; and
Gaye Middleton.

I have two chapters in the book – one with Professor Brian Fitzgerald titled, “The Law as Cyberinfrastructure”, which also appears as an article in CTWatch Quarterly (Volume 3, Number 3, August 2007: The Coming Revolution in Scholarly Communications & Cyberinfrastructure) and can be accessed here, and one with Professor Anne Fitzgerald and Anthony Austin titled, “Understanding the Legal Implications of Data Sharing Access and Reuse in the Australian Research Landscape”, which is derived from our 2007 report, Building the Infrastructure for Data Access and Use in Collaborative Research: An Analysis of the Legal Context.

The book is highly comprehensive, coming in at over 500 pages, and looks fantastic – SUP has done an incredible job in putting it together. Hard copies can be obtained from SUP at cost (AU $59.95). A digital version will soon be available online under a Creative Commons licence, which means it can be downloaded and used for free. It is not up yet, but I will post a link when it is.

On unequal bargaining powers in contracts...

2008-08-04T17:15:00.000+10:00

There is a problem with our profession. It is a problem that is now difficult to address, due to the long line of case law that has entrenched the following concepts into our system and our understanding of contract law:

parties to a contract deal at arms length; and
parties to a contract are generally assumed to have equal bargaining power, or at the very least, equal ability to seek legal advice.

But we know that in reality this is certainly not the case. Lawyer's fees are expensive; they are beyond the capacity of many people to pay. The result is that often, in contract negotiations, there will be one party that is in a significant position of power in relation to the other party.

Lawyers know this. And here's where the problem gets aggravated.

Big companies (or big enough companies) employ big firm solicitors. These solicitors then draft contracts that are overwhelmingly in the interests of their clients and are on no level fair.

Now I understand that the lawyers themselves are to a large extent subject to the system – to a system that makes them liable if they do not fully protect their client's interests, to the extent that they feel that it is necessary to draft these overly conservative, imbalanced agreements.

It would be one thing if the other party had lawyers who were also strongly pushing their clients interests, and who would then counter-offer, and negotiations could proceed until a reasonably balanced position was reached. That is how the contract law system was conceived.

But when the other party is an individual with no legal representation, the entire system becomes skewed.

I deal quite frequently with authors who are faced with publishing agreements that take all of their IP rights for an insubstantial or no fee. And I am sure that this occurrence is not limited to the publishing environment – musicians face the same deal with many recording contracts, and there are many other individuals out there in the same boat. The authors I speak to are usually very reluctant to request any changes to the publishing contract in their favour. Why? Because of the unequal bargaining power. Because they are scared. They are scared that their publisher will object to their objections, and then they can kiss their publishing deal good bye. So they don't ask for the changes.

But my thoughts are that the opposite is really the case. I, as a person with legal training and who understands what the contract is purporting to do, am not afraid to say what I don't agree with and why. And for the most part, this gets the results I want, or at least brings me closer to them. The other party rarely slams the door in my face.

I think this happens because I know what I am reading, I know my legal rights and I make it clear to the other party that I know. And unlike what their contract would lead you to believe, the other party is not actually reluctant to budge from their initial position. They are just not expecting you to ask for changes, because they are expecting you to not know what you are reading and not know what your rights should be.

So they draft contracts that:

transfer all or most of your rights (in the case of IP-related contracts);
give you very little in return; and
contain indemnity clauses that basically require you to pay for everything and anything that could possible go wrong (and that includes paying legal fees, which seems absurd for a person who can't afford a lawyer to read the contract for them in the first place).

And they do this expecting that you will just sign, not fully understanding the ramifications.

I believe that it is time that professional ethics standards developed in line with social reality. It is time for the legal profession to cease pretending that all other parties are represented, and to begin to consider the unfairness that results where a contract is oppressively drafted against the interests of a smaller party.

Comments about my most recent publication

2008-08-03T17:08:00.000+10:00

Sanford Thatcher, Past President and on the Board of Directors of the Association of American University Presses (AAUP) provided the following feedback about Understanding Open Access in the Academic Environment - A Guide for Authors (2008 OAK Law Project) to the directors of university presses that are members of AAUP:

Thanks to Stevan Harnad for drawing our attention to this important new guide. I have just finished reading all 150 pages of it and can highly recommend it to all of you as an authoritative overview of the landscape of open access publishing as it applies to journal articles. (The guide does not say anything about books, or even contributions to edited volumes.) Among other useful features, it contains a brief but helpful history of the OA movement, a summary (with quotations) from the principal OA statements (Budapest, Berlin, et al.), a survey of OA journals and various business models by which they operate, a discussion of the role of institutional repositories and funding agencies, and a very helpful discussion of the interconnected licenses (including the author's addendum and Creative Commons licenses) that authors get involved in negotiating with publishers, funding bodies, institutional repositories, etc. I applaud its conservative stance on how to deal with the kind of author's addendum that claims to be valid even if the publisher does not sign it (see page 109). CIC press directors should see what is said about CIC policies on page 111. If you read nothing else, I urge you to read at least chapters 8 and 9, which discuss how authors can negotiate contracts with publishers. The guide concludes with a Copyright Toolkit, which is a wonderful condensation of a lot of relevant information--and also dramatizes how complex this terrain is getting for authors, who are faced with multiple and possibly conflicting licenses. As a comprehensive tutorial for your staff on the state of OA today, I don't think there is anything out there that is better than this--though it is limited to the domain of journal articles and clearly has a pro-OA bias (reflected in the numerous quotations from people like Peter Suber and Stevan Harnad).

P.S. Although this is produced by an Australian group, most of what is contained in it is universally applicable. The exception is the short section on Australian copyright law, which differs in a number of respects from U.S. law (including the "moral rights" provisions that Australian law incorporates but U.S. law doesn't).

Thanks to Sandy for permitting me to republish this feedback on my blog.

New article on the role of parody in Australian copyright law

2008-07-29T14:09:00.000+10:00

Nic Suzor, PhD candidate at QUT, has a new article in the Media & Arts Law Review that is worth a look.

Citation is: Nicolas Suzor, 'Where the bloody hell does parody fit in Australian copyright law?' (2008) 13(2) MALR 218.

The title of the article refers to this spoof of the Australian Tourism's 'where the bloody hell are you?' advertisement.

Here is the abstract:

This article examines the role of the recently introduced fair dealing exception for the purposes of parody and satire in Australian copyright law. Parody and satire, while central to Australian expression, pose a substantial challenge for copyright policy. The law is asked to strike a delicate balance between an author’s right to exploit their work, the interests of the public in stimulating free speech and critical discussion, the rights of artists who rely on existing material in creating their own expression, and the rights of all artists in their reputation and the integrity of their works. This article highlights the difficulty parodists and satirists have historically faced in Australia and examines the potential of the new fair dealing exceptions to relieve this difficulty. This article concludes that the new exceptions have the potential, if read broadly, not only to bridge the gap between humorous and non-humorous criticism, but also to allow for the use of copyright material to critique ﬁgures other than the copyright owner or author, extending to society generally. This article will argue that the new exceptions should be read broadly to further this important policy goal while also being limited in their application so as to prevent mere substitutable uses of copyright material. To achieve these twin goals, I suggest that the primary indication of fairness of an unlicensed parody should be whether or not it adds signiﬁcant new expression so as not to be substitutable for the original work.

You can access the article here. It is available under a Creative Commons Attribution-ShareAlike (BY-SA) 2.5 Australian licence. See also Nic's blog at www.nic.suzor.com

IP enforcement taken too far?

2008-07-25T13:40:00.000+10:00

Today, one of Wired's top stories is “Senate Introduces IP-Reform Bill Bolstering Enforcement”. The abstract in my RSS feeds caught my attention: “Legislation bolstering intellectual property enforcement by increasing penalties, expanding the power of the attorney general and creating a new FBI piracy unit was proposed Thursday in the Senate.”

An FBI Piracy Unit???

Isn't that a little extreme? I think that the US Justice Department has forgotten that at the end of the day, “piracy” is just copying a song or moving visual image. That's all. What's more, it is traditionally a civil action between two parties – the copyright owner on the one hand and the alleged infringer on the other. The community-at-large is generally not harmed. I think it's time the Justice Department stop doing the entertainment industries' legal work for them.

The article quotes Gigi Sohn, President of Public Knowledge and a communications attorney, who said, "This bill would turn the Justice Department into an arm of the legal departments of the entertainment companies by authorizing DOJ to file civil lawsuits for infringement, forcing taxpayers to foot the bill."

Read the full story here.

Book Review: Tech girls are chic! (not just geek!)

2008-07-24T09:57:00.000+10:00

At the CCI conference I was fortunate enough to meet Jenine Beekhuyzen, IT consultant and PhD candidate at Griffith University, who together with Rebecca Dorries has compiled and edited the book, Tech girls are chic! (not just geek!). The book was inspired by Beekhuyzen and Dorries's experiences in the IT industry, which even in this day and age remains dominated by males, and is an effort to get girls aged 12-16 interested in careers in IT.

From the Tech girls are chic! website:

Tech girls are chic, not just geek is a fun new book showing that it takes all types of people to work in Information Technology (IT). Our 16 'tech girls' are women working in a range of technology jobs across Australia. They are a bunch of fun and funky women who find working with technology challenging and interesting, and they are far from fitting the stereotypical 'geek' image portrayed by the media. They use their technical and/or non-technical skills (usually a combination of both) to have a successful career in IT.

So who wouldn't want to work with technology? There are heaps of jobs all over the world, travel to exotic locations, interesting and challenging work, and you often don't have to work in a boring office. Sounds like a great career? We think so! So why do so few people (especially girls) choose this type of career? That's a great question. Researchers have been trying to uncover this mystery for many years, and conclude that the industry has a serious image problem. The stereotype is that working with technology is boring, and that you have to be nerdy and spend all day in front of a computer alone. This is not what Information Technology (IT) is all about. Once you see the book you will see why! You can see a bunch of fabulous gals who work with technology every day; and they love it...

Jenine was kind enough to give me a free copy of the book. It is small, pink and oh so pretty (perfect for the target audience). It profiles 16 women in the IT industry, and each woman has section in the book consisting of:

a profile page containing a small paragraph written about themselves, a colour photo and other quirky designs;
a “question and answer” type page covering a variety of topics ranging from 'what is your job' to 'what is your favourite girly movie' and 'what handbags and shoes do you own' (clearly to demonstrate the feminine “chic not geek” side to the women); and
interestingly, a short (2 page) fiction piece, written by each woman, presumably drawing on her own life experiences. I especially enjoyed, “Toto, I've a Feeling We're Not in Kansas Anymore” by Julie Kilner, about male/female stereotypes in IT (it rather comically considers the "World of Warcraft" IT boy stereotype).

The book is clearly written to a target audience of young girls, but notwithstanding I had fun reading this text. It is light but informative, and scattered throughout the book (amongst the stories and pictures) are advertisements for IT degrees at universities, links to helpful websites and “what do I do next?” guidance. I think that young girls interested in IT would find this book helpful and accessible.

The book can be ordered online by contacting the authors via the Tech girls are chic! website. Sponsorship has been raised to allow the authors to distribute the book free to secondary school girls across Australia.

(Side note: the website is licensed under a Creative Commons Attribution-Non Commercial-No Derivatives (BY-NC-ND) licence).