(2007) 4:1 SCRIPTed 1—160

Issue DOI: 10.2966/scrip.040107

Volume 4, Issue 1, March 2007


Peer-reviewed Special Issue:
Creating Commons

  • Introduction to the Special Issue
    Graham Greenleaf, p.7
    Professor Graham Greenleaf introduces this special issue of SCRIPTed, based on the Unlocking IP 2006 Conference “Creating Commons: The Tasks Ahead in Unlocking IP”, University of New South Wales, 10-11 July 2006.
  • Finding and Quantifying Australia’s Online Commons
    Ben Bildstein, pp.8-37
    Exploration of the online commons is relatively new. The original landscape of the World Wide Web was very spread out, and traversing it usually meant following links from page to page. At this stage, the only way to find works with public rights was to stumble across them. With the growth in search technology, the Internet became much more accessible, though it has surely grown to compensate. At this stage, it was possible to search for online commons, but only in the most rudimentary way – trying to guess which words were more likely to be found on pages with public rights, and then searching for them. Now, with the slow transition towards the Semantic Web, we are seeing an Internet that is even easier to traverse – where there are web pages that know something about themselves, something that can be communicated to search engines, and the landscape of the Internet can come to life.
    This paper briefly describes some of the ways that online commons can express their public rights, followed by an exploration of the ways in which people can go about finding works that are part of Australia’s online commons, using current tools. Then, using some of these techniques, data are gathered and analysed, to give an overview of the current state of some parts of the online commons in Australia. Lastly, consideration is given to what these finding may imply for the future of the online commons.
  • Simplification and Consistency in Australian Public Rights Licences
    Catherine Bond, pp.38-58
    Given the significant increase in Australian public rights licences over the last five years, questions must be asked as to how these licences can be further simplified to increase both usage and ease of use. While a number of public rights licences are available in several formats, many are long in length and contain tricky legal jargon that may deter potential users. Simplification must be considered from the perspective of both potential licensors and potential licensees. I suggest in this paper that this could occur through the drafting of two formats for licences: a longer version for potential licensors and a short version for licensees, both adopting simple language and avoiding complex legal terminology. Further, we must also consider whether consistency between licences is an important factor, with three questions requiring evaluation: whether consistency is needed, whether consistency is feasible, and whether consistency should be addressed on both a national and/or international front. I conclude that while consistency is both needed and feasible on a national level, differing ideologies between licensing bodies may prevent consistency being achieved on an international level.
  • Business Models to Support Content Commons
    Roger Clarke, pp.59-71
    The application of conventional, ‘scarce resource’ economics to content has been mistaken and harmful. More appropriate forms of economic analysis highlight the critical role that accessibility to information plays in the process of innovation. Meanwhile, down at the micro-economic level, there is an all-too-common perception that open content approaches are unsustainable and bad for business, and reflect naïve idealism on the part of their proponents. This paper identifies a range of suitable business models, and thereby demonstrates that the content commons is sustainable and appropriate for profit-oriented business enterprises.
  • Creative Commons – The Next Generation: Creative Commons licence use five years on
    Jessica Coates, pp.72-94
    Since its launch in 2001, the Creative Commons open content licensing initiative has received both praise and censure. While some have touted it as a major step towards removing the burdens copyright law imposes on creativity and innovation in the digital age, others have argued that it robs artists of their rightful income. This paper aims to provide a brief overview and analysis of the practical application of the Creative Commons licences five years after their launch. It looks at how the Creative Commons licences are being used and who is using them, and attempts to identify likely motivations for doing so. By identifying trends in how this licence use has changed over time, it also attempts to rebut arguments that Creative Commons is a movement of academics and hobbyists, and has no value for traditional organisations or working artists.
  • The Future Of Fair Dealing In Australia: Protecting Freedom Of Communication
    Melissa de Zwart, pp.95-116
    This article considers the role of the concept of freedom of communication within the law of copyright in Australia. It concludes that the judicially articulated implied Constitutional guarantee of freedom of political communication is too narrow to act as a control upon the contours or nature of copyright law. However the doctrine of fair dealing encompasses elements of freedom of communication and provides some scope for the recognition of such rights under Australian law.
  • Creating commons by friendly appropriation
    Graham Greenleaf, pp.117-135
    The relationships of the world-wide-web and its search engines to the ways in which ‘intellectual commons’ are created, has received little consideration. I argue that the operation of Internet-wide search engines constitutes the creation of an intellectual commons. The history and features of the Google search engine are the principal example. They illustrate what is probably a very unusual method by which commons are created, which I call ‘friendly appropriation’. I identify eight conditions which are conducive to the creation of commons by friendly appropriation. Some examples are given of other situations which may constitute friendly appropriation, and of some which do not.
    Instances of commons arising by this means may be rare, but a fully-developed theory of intellectual commons needs to recognise when they occur.
  • Without Walls: Copyright Law and Digital Collections in Australian Cultural Institutions
    Emily Hudson and Andrew T Kenyon (published in volume 4:2)
    Digital communications technologies are providing new means for museums, galleries, libraries and archives to pursue their public interest missions, including in relation to access. However, as practical impediments to collection access change, copyright law poses significant challenges to the development of digital collections. This article uses recent experience in Australia to discuss copyright’s impact on digitisation, and to explain why and how copyright has influenced the cultural institution “without walls”. It also describes recent amendments to Australian copyright law – in particular, introduction of a flexible exception for some activities by cultural institutions. This may represent an important development in Australia, and offers relevant case study internationally, for addressing copyright issues about digital access.
  • Cooperative Intellectual Property in Biotechnology
    Diane Nicol, pp.136-151
    This paper briefly considers some of the perceived problems associated with the exclusive rights model of patent management in biotechnology. It then goes on to explore the range of legal options for dealing with some of these perceived problems, together with alternative co-operative approaches that are currently under discussion in various forums, including open access models. This review shows that there are many parallels in the issues currently being debated in the information technology and biotechnology industries in relation to the copyright and patent regimes of intellectual property.


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