Greenleaf, Graham --- "Unlocking IP to stimulate Australian innovation: An Issues Paper" [2008] UNSWLRS 44

Last Updated: 12 December 2008

Unlocking IP to stimulate Australian innovation: An Issues Paper

Graham Greenleaf

This paper will shortly be available for download.

Abstract

This is a submission to the Review of the National Innovation System < <http://www.innovation.gov.au/innovationreview/Pages/home.aspx> undertaken by an expert panel chaired by Dr Terry Cutler, for the purpose of preparing reports to Australia’s Minister for Innovation, Industry, Science and Research. A Green Paper responding to the submissions is to be presented to the Minister by 31 July 2008.

‘Public rights’ in intellectual goods (the broad usage of ‘the public domain’), are increasingly important as a driver of innovation in information economies. This submission examines ten areas where changes to strengthen or protect Australia’s copyright public domain may be desirable to encourage innovation. They are intended to be areas where change is possible within the constraints of our Constitution and international obligations, rather than impractical areas such as changes to the copyright term. The ten areas are: The scope for further exceptions to copyright; Legal deposit’s role in the public domain; Finding missing rights-holder (orphan works); Enabling open content licensing to thrive; Maximising the value of free and open source software (FOSS); Moving toward open standards; Coexistence of open content and compulsory licences; Re-usable government works; Public rights in publicly-funded research; and Indigenous culture’s relationship to the public domain.

Some of the main issues and problems identified from consideration of these ten areas (from over 100 questions raised) are: Whether we should a adopt a more flexible ‘fair use’ copyright exception, very similar to that in the USA?; Whether steps should be taken to stop contractual provisions over-riding copyright exceptions?; Whether legal deposit schemes should be re-considered to maximise the contribution they can make to the public domain?; How can we stop technological protection measures (TPMs) subverting legal deposit schemes?; How can we best combine ‘active’ and ‘passive’ modes to ensure the best legal deposit scheme for audio-visual and digital materials?; What can we do to more effectively find missing rights-holders?; What rights to use ‘orphan works’ should be created, and should authors be compensated when found?; Whether amendments to the Copyright Act could be valuable to strengthen the enforceability open content licences?; Whether the Act should contain provisions enabling public domain dedications?; Whether the Act could also give more support to the enforceability of FOSS licences?; Whether Australian government practices are giving sufficient support to FOSS licensing or open standards?; Whether members of collecting societies need stronger rights to exempt their works from collecting society operations?; Are collecting societies charging for the public’s use of works in the public domain (including open content works)?; In what types of works should Crown copyright be abolished?; What licences, seals or other practices should Australian governments adopt to ensure greater re-use of government-created works?; Does the Copyright Act need to give greater protection to University republication of government-funded research?; Do current policies of Australian research funding bodies have strong enough requirements for public accessibility to publicly-funded research?; How can we best ensure that the special problems of the relationship between indigenous culture and the public domain receive an appropriate response in Australia?

Through the discussion of these areas, interlocking themes emerge, including the need to make ownership of works easier to ascertain, and to make use of works easier when owners cannot be found; how changes to copyright law might assist voluntary actions by authors to expand the public domain; how some Australian institutions may need more protection in their uses of works; and how governments could lead by example in relation to government-produced works, government-funded academic research, and government engagement with open source software and open standards.

The submission argues that these issues are so central to the question of innovation in Australia that the Innovation Review should recommend that the Australian Law Reform Commission should be given a reference to review the role of public rights in Australia’s copyright law (or preferably in all intellectual property laws). Such a review with the public domain as the focus of enquiry has never taken place in Australia, or perhaps anywhere in the world. Australia would benefit from a considered review that focuses on public rights, and on what balance between public rights and proprietary rights would maximise the national interest.

This submission is in the form of an ‘Issues Paper’: it presents over 100 questions which it would be valuable for such a law reform review to answer, and suggests why they are important to Australia’s innovative capacity. It does not propose particular reforms. Researchers from the Unlocking IP Project intend to publish a further Discussion Paper in late 2008 which will discuss options for reform on all of these issues, followed by a Report in 2009 which will state our views on what reforms are desirable.