National Dimensions of the Public Domain: Creating commons-ism in one country? Presented by Philip Chung Graham Greenleaf, Professor of Law, UNSW; Co-Director, AustLII & CyberLPC David Vaile, Executive Director, CyberLPC Philip Chung, Executive Director, AustLII
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National Dimensions of the Public Domain: Creating commons-ism in one country? Presented by Philip Chung Graham Greenleaf, Professor of Law, UNSW; Co-Director,
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National Dimensions of the Public Domain: Creating commons-ism in one country?
Presented by Philip Chung
Graham Greenleaf, Professor of Law, UNSW; Co-Director, AustLII & CyberLPC
private rights in works (‘some rights reserved’) through a series of licences creating various limited rights
– associated with the US Creative Commons (headed by Lessig from 2001)
– Internationalised via ‘iCommons’ associates such as iCommons Australia (based at QUT)
– Little difference in philosophy and approach from other approaches to licence-based public rights
Eg AEShareNet in Australia’s TAFE sector
Terminology for public rights
(3) ‘Open content’ [open source, open standards - closely related]
– Broader definition includes all content that can be freely copied (eg Wikipedia defn.)
– Narrower definition requires content not just to be freely available, but also includes the ability to adapt and change the work (eg Openflows defn)
‘[creative] commons’, ‘public domain’ and ‘open content’ often interchangeable - terminological confusion is common
Terminological clarification?
Starting point: recognising the continuum of public and proprietary rights in works
– [full] ‘public domain’ (old sense) is at one end - ‘no rights reserved’ (even then, moral rights remain)
– In theory, full proprietary rights would be at the other end Except there is nothing there!
– Proprietary works which are subject only to the statutory public rights, are only toward the other end, but each type of work differs, as each is subject to different public rights
– In between are all works with some additional public rights created by voluntary licensing of rights to the public, but ‘some [proprietary] rights reserved’
Terminological clarification? -Some implications
There is no public/private dichotomy, just a continuum– In fact, it is a multi-dimensional continuum, because works can
vary along many different dimensions– Dimensions include exclusive rights, duration etc
Essential to recognise how flexibly terms are used– We use ‘commons’ to refer to wherever there are more public
rights than the statutory minimum - very broad Advocates for public and private rights can disagree on one
dimension while agreeing on another - ‘public domain’ or ‘commons’ issues are not all or nothing
– This is apparent from what can alter the continuum …
What creates commons?
What types of actions change the location of works on the copy-rights continuum?– (1) Legislation - changing definitions – (2) Legislation - creating compulsory licences– (3) ‘Friendly Expropriation’ + acquiescence– (4) Voluntary licensing
All of these actions can create public rights beyond the statutory minimum (commons)
What destroys commons?
What removes material otherwise in commons?– Some legislation– Some technology locks it up – Contracts can do so
(1) Legislation - changing definitions: altering the continuum
acceptance and sustainable profit– Lessig (Free Culture): Major US innovation-based industries were
based on ‘piracy’, often followed by a compulsory licence to make them ‘legit’:
The recording industry - mechanical reproduction right Cable TV rebroadcasts - 30 years, then a compulsory licence Radio - broadcasting of sound recordings - no protection at all
(Lessig’s Free Culture (Penguin) is available free under a Creative Common (CC) licence in numerous formats)
Legislation - compulsory licences: altering the continuum
Commons require organisation– They do not occur spontaneously– Lessig’s examples also show where a commons
element has provided an organisational structure previously absent, from which all sides subsequently prosper
– Benkler’s work on commons-based modes of production explore which structures work
(3) ‘Friendly Expropriation’ + acquiescence: altering the continuum