Free public lecture - Professor Julie Cohen on Copyright and Creativity

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

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

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

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

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.