Copyright Licensing for Open Access

Copyright Licensing for Open
Professor Brian Fitzgerald
QUT Law Faculty
OAK Law Project Leader
• Journal Articles
• Electronic Theses
• Public Sector Information (PSI) or
Government Materials
• Australian Creative Archive
• Data Management, Access and Reuse
• Education (Schools)
• Standards
Open Access will not happen by default
Needs to be facilitated
Institutional Engagement
Technical and Legal Framework
Education and support
Copyright [and Patent] is a key variable
Public Sector Institution
External Expertise
• Manage copyright for open access
• Put in place policy and systems that
provide OA - [mandates]
• The role of the actors – such as
authors/creators, institutions (including
funders), industry, research community,
end users
• Licensing is part of the strategy
Copyright Basics
• Exclusive economic rights of copyright
owner to (amongst other things) reproduce
and communicate to the public
• Moral rights of the author
• Permission needed to do acts that come
within exclusive rights of copyright owner
• Unless a permission is found elsewhere –
e.g fair dealing, other exceptions, statutory
Copyright Owner
• Who is the copyright owner?
• Starting point - person who created
copyright – but that person may have
assigned copyright “in writing” to another
• Exception to this rule – if copyright is
created in the course of employment –
then the employer owns copyright
• A licence is a permission from the
copyright owner to do acts that fall within
the ambit of the exclusive economic rights
• It may be:
- exclusive: the licensee only allowed
- sole: licensee plus CR owner allowed
- non exclusive: others can be given
similar or other permissions
Publishing Agreements
Publishing Agreement I
• An academic employed by a university
writes an article – are they funded by a
grant? Research only – is it in the course
of employment – what does the IP policy
• A researcher employed by a government
department or independent research
institute – writes an article in the course of
their employment?
Publishing Agreement II
• Author/s assigns copyright to the publisher
– in return for profile and status - rarely
monetary reward
• The publisher is now the copyright owner?
• Did the author have the copyright to
assign in the first place?
• Is the assignment evidenced in writing?
Publishing Agreement III
• Presuming the publishing agreement is
lawfully concluded
• Publisher now holds the power over
dissemination and importantly the right to
communicate this publicly funded
knowledge to the world
Publishing Agreement IV
• Publishing Agreement does not normally
expressly say: “you can put your article in a
• But many publishers – see SHERPA and
OAKList – have policies formulated or can
formulate them on request – that support deposit
into a publicly available repository
• Would be simpler if the agreement stated this
like it does for other things – or if the assignment
was only partial not purporting to take these
rights from the author
Publishing Agreements V
• Could we reconceptualise the agreement
from an assignment to a non exclusive
“license to publish”
• Protect the publisher’s interests in the
licence – by prohibiting any other
commercial publication?
Practices and Attitudes of
Academic Authors
 The Majority of Authors Enter into Assignment
Agreements with Publishers (63%)
 Minority of Authors (8%) – Prefer Assignments
 Sizeable Number of Authors (32%) - Prefer to
Retain Rights of Open Access in their Works
through a Licence
 Majority of Authors (54%) – Have No Preference
between Assignment and Licence
Practices and Attitudes of
Academic Authors
• Over 50% of Authors were Unsure if they were Allowed
to Deposit into a Repository Under:
– Their Past Publishing Agreements; OR
- Their Most Recent Publishing Agreements
 The Majority of Authors Do Not Insist Upon a Licence
with Publishers - Over 50% Think that it is Too Much
Trouble to Negotiate with Publishers
 Almost One-in-Two Authors (49%) Do Not Understand
the Terms of a Publishing Agreement but Sign it Anyway
Open Access and Reuse
What is OA
Internet - searchable
No Fee
Format flexibility? DRM?
Permission to Reuse?
Can be practiced? Patents?
Why is reuse important?
• Further communication – networking
• Further research
• Serendipity
• Web 2.0
• Education
• Application or Practice
• Other reasons
Clarifying reuse rights
• If you are the copyright owner or authorised by
them you could apply a Creative Commons
• Permission in advance – given on condition –
attribute author BY - use it in a non commercial
manner NC – do no make derivatives ND –
share improvement back to the public SA
• CC Licence Generator
CC - Four Main Protocols
• Attribution: Other people may use, modify and
distribute the work, as long as they give the original
author credit.
• Non-commercial: Other people may use, modify
and distribute the work, but for non-commercial
purposes only.
• No derivatives: Other people may use and distribute
the work, but can not modify it to create derivative
• Share alike: Other people may modify the work and
distribute derivatives, but only on the condition that
the derivatives are made available to other people on
the same licence terms. This term can not be used
with the No Derivatives term, because it applies
only to derivative works.
Backdrop – Copyright in the Digital
Age - 2 Default Rules
1. General rule: you cannot do any act within the
exclusive economic rights without the permission
of the copyright owner
2. In the digital environment we automate the
potential for reproduction and communication to
the public through use
For example: reading in real space is not an
infringement – but to read in the digital
environment we need to reproduce and
communicate – the copyright zone
Minister Kim Carr – Open Access
“We want the research conducted in universities and
public research agencies to inspire and inform fresh
thinking across the community. The more collaboration
and interaction there is between researchers and the
society around them, the better. It follows that research
and research data should be widely disseminated and
readily discoverable. .. The results of publicly funded
research should be publicly available. … More
accessible information equals more robust debate
equals a stronger national innovation system.”
“There is More than One Way to Innovate” 7 Feb 2008
Venturous Australia
• 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.
Strategic Management of CR at an
Institutional Level
• Encourage or mandate [deposit] but also use
copyright tools (e.g. licences) that facilitate this
process and OA more generally
• For example – a non exclusive licence – that will
allow deposit in a repository – and importantly
that will allow reuse for designated purposes
• What role for the institution – in educating and
possibly negotiating with publishers
• What response from publishers?
• Win-win solutions?
Electronic Theses
ETD Issues
• Generally copyright held by author –
assignment? resources invested? Course
of employment?
• Third party copyright in theses – how to
clear when needed
• Have the student self manage copyright
• How to licence the thesis and any 3rd part
CR – can CC play a role
Public Sector Information
Potted History - Decade
Cutler Reports 1993-4
IDC Report 2000 - OSDM
Productivity Commission 2001 -“Cost Recovery”
Submissions to CLRC Review 2004
GILF Project Stage 2 Report 2005-6
Pilot/Application by OESR, ABS and GA 2005National Summits 2007-8
OECD PSI Principles 2008
Venturous Australia 2008
Our recent input
• 2005-2006 - Stage 2 Report of GILF Project – Access to
Government Information and OCL – An Access and Use
• November 2006 – “Unlocking the Potential” E Bledsoe,
J. Coates and B Fitzgerald Unlocking the Potential
Through Creative Commons: an industry engagement
and action agenda, August 2007
• July 2007 – First National Summit – Qld Parliament
House – Conference Report on the Australian National
Summit on OA to PSI -
• March 2008 - Second National Summit on OA to PSI
Power of Information
• E. Mayo and T Steinberg, The Power of Information
(2007) (and UK Government response)
• The way government manages information is changing –
blogs, user-generated input – administration and policy
making, Howard and Rudd’s use of Myspace and
YouTube – consultation - sites such as
• Richard Allan – Cisco – Chair of Power of Information
Advisory Board – former MP in the UK
• Government sponsored competitions on data mashups
• Government asking people how they can share better
• Public Sector Information Unlocking Service (beta)
OECD Access to PSI Principles
• The Organization for Economic Co-operation
and Development (OECD) released a new
Recommendation of the Council for Enhanced
Access and More Effective Use of Public Sector
Information at its recent Ministerial Meeting on
the Future of the Internet Economy (Seoul, June
17-18, 2008). ... [The Council] recommends that,
in establishing or reviewing their policies
regarding access and use of public sector
information, Member countries take due account
of and implement the following principles ...
OECD PSI Principles
• Openness. Maximising the availability of public
sector information for use and re-use based
upon presumption of openness as the default
rule to facilitate access and re-use. ...
• Access and transparent conditions for re-use.
Encouraging broad non-discriminatory
competitive access and conditions for re-use of
public sector information, eliminating exclusive
arrangements, and removing unnecessary
restrictions on the ways in which it can be
accessed, used, re-used, combined or shared,
so that in principle all accessible information
would be open to re-use by all. Improving
access to information over the Internet and in
electronic form. ...
OECD PSI Principles
• Asset lists. Strengthening awareness of what
public sector information is available for access
and re-use. ...
• Quality. Ensuring methodical data collection and
curation practices to enhance quality and
reliability ...
• Integrity. ... Developing and implementing
appropriate safeguards to protect information
from unauthorised modification ...
• New technologies and long-term preservation.
Improving interoperable archiving, search and
retrieval technologies ...
OECD PSI Principles
• Copyright. Intellectual property rights should be
respected. There is a wide range of ways to deal
with copyrights on public sector information,
ranging from governments or private entities
holding copyrights, to public sector information
being copyright-free. Exercising copyright in
ways that facilitate re-use ... and encouraging
institutions and government agencies that fund
works from outside sources to find ways to make
these works widely accessible to the public.
OECD PSI Principles
• Pricing. When public sector information is not
provided free of charge, pricing public sector
information transparently and consistently ...
Where possible, costs charged to any user
should not exceed marginal costs of
maintenance and distribution ...
• Competition. ... Requiring public bodies to treat
their own downstream/value-added activities on
the same basis as their competitors for
comparable purposes ... Promoting nonexclusive arrangements for disseminating
information so that public sector information is
open to all possible users and re-users on nonexclusive terms.
OECD PSI Principles
• Public private partnerships. Facilitating publicprivate partnerships where appropriate and
feasible in making public sector information
available ...
• International access and use. ... [P]romote
greater interoperability and facilitate sharing and
comparisons of national and international
datasets. Striving for interoperability and
compatible and widely used common formats.
• Best practices. Encouraging the wide sharing of
best practices and exchange of information on
enhanced implementation ...
Venturous Australia 2008
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).
Venturous Australia 2008
• 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.
CRC SI project 3.05 - Literature
• Due to be released this week – 200 pages
• Starts with Australia and NZ - work on
Europe, USA, Canada, International well
Creative Archive
Access to Culture
• Access to culture is important o
creativity, research and innovation
• Enormous amounts of copyright
material held by publicly funded
agencies – how can we create better
• For research, practice, identity,
enjoyment and reuse
Venturous Australia 2008
• 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.
Data Access and Reuse
Data management plans
Platforms for access
Compilation of data gives rise to copyright
in Australia – Ice TV currently before the
High Court will consider this further but
unlikely to alter the low threshold test for
Education (Schools)
Education Sector
• Copyright fees are rising rapidly and
increasing the cost of school education
• Use of OA materials
• Creation of OA materials
• Digital Education Revolution
• Open Education Resources
IP and Standards
OA to Standards
OAK Law has done a 200 page report on
these issues which is being finalised –
number of presentations in Australia and
On 3 March 2008, IMS GLC announced the
commencement of a pilot project exploring the use
of Creative Commons licensing of interoperability
specifications. Approval of the pilot project followed
the review of an initial concept paper by the IMS
GLC Board of Directors. The pilot project, run in
conjunction with the New Zealand Ministry of
Education, is to be supported by participants from
IMS member organisations. The pilot project will
refine the proposed approach and test it on an initial
set of IMS GLC standards and projects in order to
determine its effectiveness.
• The press release announcing the pilot project explained that this
was a departure from the copyright licensing practices traditionally
used by standards organisations: “Historically, specifications and
standards consortia have grappled with the need to be good
stewards of the investments made by consortium members and
achieving control toward interoperability in practice, while also
engendering market innovation. IMS GLC has conceptualised a
novel approach that may be applicable to many standards
organisations. Today, almost all such organisations publish their
specifications under standard copyright.”: See IMS Global Learning
Consortium, IMS Global Learning Consortium Announces Pilot Project
Exploring Creative Commons Licensing of Interoperability Specifications,
press release, 3 March 2008; available at
• In the press release announcing the pilot project, Rob
Abel, CEO of IMS GLC commented: “We are pleased to
be breaking new ground in achieving wider use of and
innovation from open standards while still stepping up to
achieving interoperability in practice. IMS Global has
been working for two years now to put in place some key
processes, such as open source tools for application
profiling and testing, that will enable this new approach.”
Creative Commons
Minister Kim Carr
“Creative commons
The last big idea in the report I want to touch on is open access.
It is embodied in a series of recommendations aimed at unlocking
public information and content, including the results of publicly
funded research. The review panel recommends making this
material available under a creative commons licence through:
- machine searchable repositories, especially for scientific papers
and data
- cultural agencies, collections and institutions, which would be
funded to reflect their role in innovation
- and the internet, where it would be freely available to the world.
- It also argues that patent law should be tightened to ensure that
the inventive steps required to qualify for a patent are considerable
and that patents are well defined, leaving maximum scope for
subsequent innovators.
Minister Kim Carr
“This is consistent with steps I’ve already taken to revive work on the
accessibility framework proposed – but never delivered – by the previous
Australia takes justifiable pride in the fact that it produces 3 per cent of the
world’s research papers with just 0.3 per cent of the world’s population, but
that still means 97 per cent of research papers are produced elsewhere.
We are and will remain a net importer of knowledge, so it is in our interest to
promote the freest possible flow of information domestically and globally.
The arguments for stepping out first on open access are the same as the
arguments for stepping out first on emissions trading – the more willing we
are to show leadership on this, we more chance we have of persuading
other countries to reciprocate. And if we want the rest of the world to act,
we have to do our bit at home.”
Legal Standing of CC Licences
Jacobsen v Katzer
• US Fed Circuit Court of Appeals - Jacobsen v. Katzer
2008 U.S. App. LEXIS 17161 (Fed. Cir. 2008).
• “Public licenses, often referred to as open source
licenses, are used by artists, authors, educators,
software developers, and scientists who wish to create
collaborative projects and to dedicate certain works to
the public. Several types of public licenses have been
designed to provide creators of copyrighted materials a
means to protect and control their copyrights. Creative
Commons, one of the amici curiae, provides free
copyright licenses to allow parties to dedicate their works
to the public or to license certain uses of their works
while keeping some rights reserved.”
Jacobsen v Katzer
“Open source licensing has become a widely used method of creative
collaboration that serves to advance the arts and sciences in a manner and
at a pace that few could have imagined just a few decades ago. For
example, the Massachusetts Institute of Technology (MIT) uses a Creative
Commons public license for an OpenCourseWare project that licenses all
1800 MIT courses. Other public licenses support the GNU/Linux operating
system, the Perl programming language, the Apache web server programs,
the Firefox web browser, and a collaborative web-based encyclopedia
called Wikipedia. Creative Commons notes that, by some estimates, there
are close to 100,000,000 works licensed under various Creative Commons
licenses. The Wikimedia Foundation, another of the amici curiae, estimates
that the Wikipedia website has more than 75,000 active contributors
working on some 9,000,000 articles in more than 250 languages”
“There are substantial benefits, including economic benefits, to the creation
and distribution of copyrighted works under public licenses that range far
beyond traditional license royalties.”
• The choices we make about copyright
licensing – have an impact on information
• CC has become a key licensing tool in the
Internet world
• When managing copyright issues – know
your full range of options and how they
can be best utilised
• Reuse is a key aspect
OAK Law Project Report No. 1: Creating a Legal Framework for Copyright
Management of Open Access within the Australian Academic and Research Sectors
(August 2006)
Copyright Guide for Research Students: What you need to know about copyright
before depositing your electronic thesis in an online repository (May 2007)
Building the Infrastructure for Data Access and Reuse in Collaborative Research: An
Analysis of the Legal Context (June 2007)
Legal and Project Agreement Issues in Collaboration and e-Research: Survey
Results (August 2007)
A Guide to Developing Open Access Through Your Digital Repository (September
Academic Authorship, Publishing Agreements and Open Access: Survey Results
(May 2008)
Understanding Open Access in the Academic Environment: A Guide for Authors (June
International Study on the Impact of Copyright Law on Digital Preservation (July
A joint report of the OAK Law Project, U.S. Library of Congress National Digital
Information, Infrastructure and Preservation Program, U.K. Joint Information Systems
Committee and the SURFfoundation in the Netherlands
Legal Framework for e-Research: Realising the Potential (August 2008)
Further References
• B. Fitzgerald, A Fitzgerald et al Internet and E Commerce Law
(2007) – Chapter 4 – especially 260-269
• B Fitzgerald et al (eds) Open Content Licensing: Cultivating the
Creative Commons, (2007) Sydney University Press, Sydney
• B Fitzgerald “Structuring Knowledge Through Open Access: The
Creative Commons Story” in C Kapitzke and B Bruce (eds.) New
Libraries and Knowledge Spaces: Critical Perspectives on
Information Education (2005) Lawrence Erlbaum and Assoc. 271
• B Fitzgerald “The Role of Open Content Licences in Building Open
Communities: Creative Commons, GFDL and Other Licences” (with
N Suzor) in C Kapitzke (ed) Rethinking Intellectual Property (2007)
Sense Publishing
• J Coates, “Creative Commons – The Next Generation: Creative
Commons licence use five years on” (2007) 4:1 SCRIPTed 72
Further References
• B Fitzgerald, F Goa, D O’Brien and S Shi (eds), Copyright, Digital
Content and the Internet in the Asia Pacific (2008) Sydney
University Press
• B. Fitzgerald, “It’s vital to sort out the ownership of ideas” February
27, 2008, The Australian (Higher Education Supplement),25197,2328052625192,00.html
• J Coates, N Suzor and A Fitzgerald Legal Aspects of Web 2.0
Activities (2007)
• B Fitzgerald, “Copyright 2010: The Future of Copyright” [2008]
European Intellectual Property Review 43
• M Perry and B Fitzgerald (eds.) Knowledge Policy for the 21st
Century (2008) Irwin Law Canada (forthcoming)
• OAK Law –
• Legal Framework for e-Research
• CRC – Spatial Information – OA to PSI
• ARC Centre of Excellence for Creative
Industries and Innovation (CCi) including
Creative Commons Clinic
Survey on legal & project
agreement issues in collaboration
& e-Research

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