I read with interest Lawrence Lessig’s response to the article in The Register' Larry Lessig in the Lion’s den' by Andrew Orlowski, which reported the debate between Lawrence Lessig and Brett Cottle, the Chair of the CISAC Board and head of the Australian Collecting Society, Australian Performing Rights Association (APRA)
http://www.lessig.org/blog/archives/003786.shtml

And last night, listening to Lessig's challenge to those CC supporters to start demanding equal respect for its objectives and to actively correct the anti-piracy claims, I thought as an Australian Copyright lawyer representing education (Schools and TAFEs) you may be intereseted in my views in relation to the Collecting Societies, particularly in Australia, reaction to the increasing uptake of CC.

For quite some time the Australian Copyright Owners community has consistently demonstrated a deep suspicion of Creative Commons licences.

A recent article by the Australian Copyright Council entitled “Creative Commons: just say cc” made some damning criticisms of CC Licences.
(Copyright Reporter Journal of the Copyright Society of Australia December 2006 Vol 24 No 4 233) http://www.copyright.org.au/publications/reporter.htm

For those who don’t knw, the Australian Copyright Council (ACC) (www.copyright.org.au) is ‘an independent non for organization that is substantially funded by Australia Council. Its objectives are:

• assist creators and other copyright owners to exercise their rights effectively;
• raise awareness in the community generally about the importance of copyright
• research and identify areas of copyright law which are inadequate and unfair
• seek changes to the law and practice to enhance the effectiveness and fairness of copyright
• foster cooperation amongst bodies representing creators and owners of copyright.


It is worthwhile to note some of Australian Copyright Collecting Societies sit on the ACC board.

The Australian Copyright Council article lists a litany of legal flaws in the CC licence scheme, including:

1. As CC licences last for the copyright term, creators will find then difficult to revoke because they will find it difficult to identify who is using their work and to contact and communicate revocation of the CC licence. Even where the creator is able to contact CC licensees and revoke the licence, the CC Licensees may be able to rely on estoppel and argue that they should be able to continue to rely on it.

The ACC thinks this level of uncertainty is unacceptable.

2. The ACC also argues that the Non Commercial licences include blatant commercial uses such as

• Playing music in a shopping centre bar, hairdressing salon or department store
• Broadcasting music or films on public broadcasters
• Reproducing artworks or photos in publications or corporate documents, including cards and letterhead
• Screening movies on train stations, aircraft, buses or taxis.
• Copying text by government or educational institutions (even rich private schools or private business colleges)

3. The ACC also argues that until recently, two of the non derivative licences did not prevent the making of some types of derivatives works. The example criticized by the ACC was sampling others works. Under Australia’s Copyright Act sampling is a reproduction and in most cases will not involve an adaptation (i.e. translation or arrangement).

4. CC licences do not contain warranties or indemnities leaving them unprotected in the event the CC work was licensed by someone who was not the owner or did not have any right to make the work available under a CC licence.

I have not listed all the alleged flaws and concerns in the article. Suffice it to say there is very little that Australian Copyright Council likes about the CC licences.

They even state that CC licences are of little use to the government and education sectors.

Rather than go into a detailed response to the above, there are particular arguments raised by ACC that I wish to respond to.

Firstly copying of CC material by an educational institution for educational purposes, is not, in my view, a commercial use. There are many free exceptions contained in the Australian Copyright Act that specifically allow educational institutions to copy and communicate other people’s material for educational purposes.

In fact, many websites in Australian and worldwide allow non-commercial copying and communication and many lawyer are of the view agree that non commercial use includes educational use.

There appears to be an implication that rich schools may take advantage of CC licences. For most Australian Schools receive government funding in some form or other and most are non for profit. Most Australian schools pay copyright fees for educational use under the compulsory education licences.

In addition, recently the copyright fees have skyrocketed from $ AUD 9.6 million in 1999 to AUD $51 million in 2006 under the compulsory educational copying and communication of print and electronic works alone. Schools are trying to figure ways to contain and sustain these costs. Will we be able to take advantage of ICT? There is no point building broadband capacity if we can’t afford to access and use content.

Secondly, the ACC states “… the educational sector, businesses, broadcasters,.governments and other organisations are able to rely on schemes in the Copyright Act to use copyright material or to take out voluntary licences offered by the Collecting Societies. In each case, they pay collecting societies for their use of their material. Licensing material under a CC licence will generally remove their ability to get payment from any of the collecting societies for use of his or her material.”

The flavour of this statement is that you are letting governments and schools to get something for nothing. It does not appreciate that schools and government are very different from the corporate business sector as we are “not for profit” and provide an essential public interest service to Australian citizens.

Interestingly, the ACC does not mention that:
• Government and educational institutions are keen to make their own material available under Creative Commons Licences where appropriate. That is based on the view that government and educational material is largely funded by Australian taxpayers and is intended for wide and free dissemination without any expectation of payment by the end user, including payment under a compulsory or voluntary copyright licence. See the copyright notice of the New South Wales Attorney General’s Department http://www.lawlink.nsw.gov.au/Lawlink/Corporate/ll_corporate.nsf/pages/LL_Homepage_disclaimer

• The new National Education Access Licence for Schools (NEALS) entered into by the Federal and all state/ territories departments of education and the non government school sector which allows all schools (including the allegedly rich ones) to copy and communicate freely each other materials where it is done for educational purposes.

• The number of Australian Cultural Institutions that provide specific educational resources for free use by the education sector such as the Australian Film Commission, Film Australia,

• Enhance TV, a free educational online resource for schools, created and maintained by Screenrights, a collecting society that administers two compulsory copyright schemes.

For the record, the main concerns of the education sector are:

• The Copyright Collecting societies' willingness and ability to exclude CC licenced works from payment under the compulsory and voluntary licences schemes. At present, we suspect we continue to pay for some CC licenced and other Free for Education and/or open content material captured under the education surveys that form the basis of our compulsory licence fees. This has lead us to strongly recommend to all those participating in NEALS to label every page of every new resource and website with the NEALS logo.

• Some of the CC Non Commercial Licences may be too broad for the education sector’s purposes.

That said, there is no reason why we can’t develop an Education Sector specific CC licence. We actively encourage education resource developers, teachers and students to use CC licenced material. We want to explore ways of using CC licences and/ similar licences to encourage more collaboration and sharing by teachers, schools and departments.

I think the education sector is the ideal CC partner to develop and showcase new and public interest ways of collaborating, sharing and creating educational resources.

Delia Browne
iSummit Scholar

National Copyright Director
Australian Schools and TAFEs.
Ministerial Council on Education, Employment, Training and Youth Affairs

tags: Sydney Australia education summit07

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