"Creative Commons use by Government in Australia (2012)", presented by Professor Anne Fitzgerald, at the Creative Commons Asia Pacific conference in Jakarta, Indonesia, 11 November 2012

1. Professor Anne Fitzgerald
Queensland University of Technology Law Faculty
Creative Commons Australia
Creative Commons Asia Pacific Regional Meeting and Conference
Jakarta, Indonesia
11 November 2012
© 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia.

2. Government (Crown) Copyright
 Vast amounts of government copyright materials
 Copyright applies to:
 Informational works
 Research outputs (reports, papers, databases)
 Cultural materials
 Public Sector Information (PSI) in a broad sense
includes material that is:
 created within government by government employees;
 produced externally by recipients of government funding; or
 prepared by non-government parties and lodged with government
under a statutory obligation or regulatory direction.
© 2012 Anne Fitzgerald..

3. Public sector components
 Government
 Federal
 State
 Local
 Education
 Secondary
 Tertiary
 Research
 Publicly-funded research institutes
 Government agencies e.g. CSIRO
© 2012 Anne Fitzgerald..

4. Copyright in data compilations
 Copyright applies to data compilations if they are
sufficiently original
 Copyright does not apply to mere facts/information or
trivial/obvious/mundane arrangements of data
 Copyright must apply to original collections of data - this is a
requirement under the TRIPs Agreement and WIPO Copyright
Treaty
 For copyright to apply, there must usually be originality provided
by some independent intellectual creation/creative
spark/application of skill and judgment
 Most countries (including Australia and US) do not have an
additional (sui generis) legal protection for collections of data (cf
European Database Directive)
© 2012 Anne Fitzgerald..

5. Creating information flows
 Complexity of information pathways:
 within government – among departments, agencies, different levels
of government; between government and community:
 from government to community; from community to government to
community; from local to national to global
 Problem of “licence logjams”
 Copyright has been relied on by governments to control access (to
prevent flow of information or to preserve commercial rights)
 Often, there is no licence, so access/use/reuse rights are unknown –
high transaction cost of negotiating new licences
 Where licences exist, terms are incomprehensible or inconsistent
 Promoting the flow of information requires appropriate
policy frameworks and licensing practices
© 2012 Anne Fitzgerald..

6. Open Access to PSI
 Creating a commons of public sector materials
 New conceptualisation of “public domain” – insisting on no
rights constrains thinking about public domain
 Public domain is not just a no rights “wasteland [or] dump on
the outskirts of respectable culture” (Bollier, Viral Spiral)
 Something of value in its own right – open knowledge and
content that can be accessed, reused and distributed
 Encompasses materials that are copyright-protected and
made available for access and reuse under open source
software and open content licences
© 2012 Anne Fitzgerald..

7. Building the commons
 Openness is not a naturally occurring (or enduring)
state
 Openness must be constructed
 When dealing with intangible interests in
intangibles, openness is achieved using legal tools
(Uhlir, Reichmann, Stallman, Lessig)
 “free beer” vs “free as in speech”
 Stallman – the latter, not the former;
 the free beer approach will not achieve openness for data
– instead, can lead to lock up/lock out
© 2012 Anne Fitzgerald..

8. Understanding the Creative
Commons licences
 a standardised system for licensing the use of
copyright materials
 a suite of 6 standardised licences
 available in 3 forms: plain english (summary); legal code
and machine-readable code
 Each licence grants baseline permissions to users to
use copyright material
 that is, to copy, publish, distribute in digital
form, publicly perform
 whether the whole or a substantial part of it
 on specified, standardised core conditions

9. Central elements of CC licences
 Baseline Permissions
 Core Conditions

10. Baseline Permissions
 Fundamental baseline rights granted by all CC licences:
 Reproduce
 Distribute
 Publicly perform
 On condition of Attribution
 Additional baseline permission granted in four of the six
CC licences to create derivative works and
 Reproduce
 Distribute
 Publicly perform
the derivative work

11. Core Conditions
Attribution (BY) – attribute the author, and no false attribution
This applies to all CC licences
Non Commercial (NC) – no “commercial use” (as defined)
No Derivatives (ND) – no changes allowed to original work
Share Alike (SA) – changes allowed, but new work is to be
distributed under the same licence as the original work
* ND and SA cannot be used together

12. Licence combinations

13. CC BY
 Core condition:
 Attribution (BY) – attribute the author, and no false
attribution
 Baseline Rights:
 Reproduce
 Distribute
 Publicly perform
 Create derivative works (and reproduce, distribute and
publicly perform the derivative work)

14. How CC came to be applied to PSI
in Australia – a chronology
• 1990s: Cutler, Wainwright – digital content strategy proposals
• 2001: Office of Spatial Data Management (OSDM) access and reuse policy
• 2004: Launch of Creative Commons in Australia
• 2004: Launch by Queensland Government of Spatial Information Licensing Project (GILF)
 2005: Unlocking the Potential: Digital Content Industry Action Agenda, Strategic Industry Leaders Group report to the
Australian Government
• 2005 – 2006: Queensland Government’s Government Information Licensing Framework (GILF) proposed use
of Creative Commons licensing for PSI
• 2007 – 2010: GILF project continues as a Queensland Government-QUT collaboration, developing knowledge
about and models for use of CC on PSI
• 2007 on: Australian Bureau of Statistics (ABS), Geoscience Australia (GA), Bureau of Meteorology (BoM)
implement open access and adopt CC licensing; National Library of Australia; Australian Broadcasting
Corporation; various State and local government initiatives
• 2008: OECD Ministerial Seoul Declaration on the Future of the Internet Economy - OECD Recommendations on
publicly funded research (2006) and Access to PSI (2008)
• 2008: Venturous Australia report on National Innovation System (Cutler Report)
• 2009: Australia’s Digital Economy, Future Directions (Department of Broadband, Communications and the Digital
Economy)
• 2009: Victorian Parliament Economic Development and Infrastructure Committee (EDIC) report (Government’s
response 2010)
• Government 2.0 Taskforce (2009), Engage: Getting on with Government 2.0 (December 2009)
• 2009: New Zealand (draft) Government Open Access Licensing Framework (NZGOAL); UK Power of Information
report
• 2009 – 2010: Freedom of Information/Right to Information reforms – State and Federal legislation
• 2010: Government response to Government 2.0 Taskforce report, accepting key recommendations and
stating that CC BY should be the default licence for PSI; Declaration of Open Government; Commonwealth
Government IP Principles 2011: Queensland Government’s IP Principles – CC BY as the default licence
• 2012: Attorney-General’s revised Intellectual Property Manual - CC BY as the default licence

15. I love
A sunburnt country
A land of sweeping plains
Of ragged mountain ranges
Of droughts and flooding rains.
My Country, Dorothea McKellar (1904)
… ‘ ‘Uluru at sunset’ by Richard Fisher, http://www.flickr.com/photos/richardfisher/3114503461/

16. Cyclone Larry – Far North
Queensland (March 2006)
Adoption of open content
licensing (Creative Commons)
as the default position for
distribution of government
copyright materials

17. Licence logjams after Cyclone Larry
 Problem of access to data held by different government departments
(State/Federal) and government-owned utility companies (power/gas)
 Governments traditionally relied on Crown copyright to control access to
information (to restrict flow of information or to preserve commercial
rights)
 Survey of Queensland government departments found that the
majority of government business units did not use any formal
licensing
 For those that did, the legal frameworks varied significantly -
“standard” approaches were outdated - many derivatives of licences
 Often, there was no licence, so access/use/reuse rights are unknown
– high transaction cost of negotiating new licences
 Where licences existed, terms were vague or inconsistent
 No standard approach towards data access for users
 Complexity for anyone outside dealing with multiple
agencies
 Potentially more difficult for Gov agencies to deal with each
other than to get same information from outside Government

18. Simplifying information licensing
 How to overcome the “George Street shuffle”?
 Strengthening commitment to ensuring that information
would be accessible and reusable across the public sector
and utilities
 Crown copyright in informational works should be
managed so as to enable (not prevent) access and reuse
 Government Information Licensing Framework (GILF)
project (QUT and Queensland Government) proposed the
application of Creative Commons licences to government
copyright materials – permission for copying and
distribution
 From 2007/2008 GILF proposals were taken up by major
federal government departments with location and
geospatial data: Geoscience Australia, Australian Bureau
of Statistics, Bureau of Meterology
© 2012 Anne Fitzgerald..

19. Black Saturday Bushfires –
Victoria (February 2009)
Direct provision of raw data in
open formats suitable for
immediate reuse

20. ‘Burning Trees’ by Sascha Grant, http://www.flickr.com/photos/oflittleinterest/374255009/

21. ‘Mother Nature’s Fury’ by Valley_Guy (Graeme), http://www.flickr.com/photos/40776356@N00/230021987/

22. ‘Region of sorrow…’ by Elizabeth Donoghue, http://www.flickr.com/photos/elizabeth_donoghue/3395598681/

23. Sam the Koala and David Tree
Victorian bushfires, February 2009
Vale Sam

24. Black Saturday
 Over 400 individual fires recorded on 7
February 2009
 Affected 78 townships, destroyed 2,030
houses and > 3,500 structures
 Displaced an estimated 7,562 people
 414 people injured
 173 deaths – Australia’s highest ever loss
of life from a bushfire
© 2012 Anne Fitzgerald..

25. Google Victorian Fire Map

26. Towards an information policy
 From 2005 on –
 reviews of government information access and reuse practices
 Queensland Government Information Licensing
Framework (GILF) report (2006)
 Cutler review (2008)
 Victorian Parliament review of access to PSI (2009)
 Government 2.0 Taskforce (2009)
 Lawrence (UK Ordnance Survey) reviews of spatial policy
and practices (2011)
 reform of Freedom of Information (FoI) schemes –
introduction of Right to Information (RTI) proactive
disclosure principles and practices (2009 on)

27. Review of the National Innovation
System (Cutler review) 2008
Information flow is a central part of the innovation
agenda
The value of information/content is in its use/re-use

28. Venturous Australia (Cutler
report, 2008)
•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:
•maximise the flow of government generated
information, research, and content for the
benefit of users (including private sector resellers of
information).
•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.
•Information, research and content funded by
Australian governments – including national
collections – should be made freely available over
the internet as part of the global public
commons, to the maximum extent possible.
Open gate by chelmsfordblue (Nick)

29. Venturous Australia (Cutler report,
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.

30. Victorian Parliament
Economic Development
and Infrastructure
Committee (EDIC)
Improving Access to
Victorian Public Sector
Information and Data
(2009)
© 2012 Anne Fitzgerald..

31. Gov 2.0 Taskforce – “Engage:
getting on with Government 2.0”
December 2009; http://gov2.net.au
Central recommendation: A declaration of open government by the
Australian Government
Recommendation 6: Make public sector information
open, accessible and reusable [chapter 5, p 58]
6.1 By default, Public Sector Information (PSI) should be:
 free
 based on open standards
 easily discoverable
 understandable
 machine-readable
 freely reusable and transformable.
6.2 PSI should be released as early as practicable and regularly updated to
ensure its currency is maintained.
6.3 Consistent with the need for free and open reuse and adaptation, PSI
released should be licensed under the Creative Commons BY
standard as the default.
© 2012 Anne Fitzgerald..

32. Government’s response
to Gov 2.0 Taskforce report
http://www.finance.gov.au/publications/govresponse20report/index.html
 Generally accepted Gov 2.0 Taskforce’s
recommendations (12 out of 13)
 agreed in principle to Recommendation 6, including:
 6.3 Consistent with the need for free and open reuse and
adaptation, PSI released should be licensed under the
Creative Commons BY standard as the default.
 Government’s response was released under a Creative
Commons Attribution (CC BY) 2.5 Australia licence
© 2012 Anne Fitzgerald..

33. Commonwealth Government’s
Statement of IP Principles (2010)
 11.(b) Consistent with the need for free and open re-use and
adaptation, public sector information should be licensed by agencies
under the Creative Commons BY standard as the default.
 An agency’s starting position when determining how to license its public sector
information should be to consider Creative Commons licences
(http://creativecommons.org.au/) or other open content licences.
 Agencies should license their public sector information under a Creative
Commons licence or other open content licence following a process of due
diligence and on a case-by-case basis.
 Before releasing public sector information, for which the Commonwealth is not
the sole copyright owner, under a Creative Commons BY standard or another
open content licence, an agency may need to negotiate with any other
copyright owners of the material.
© 2012 Anne Fitzgerald..

34. Australian Government Attorney
General’s IP Manual (2012)
 Attorney General’s IP Manual makes it clear that PSI
should be released by default free of charge under a
Creative Commons Attribution (CC BY) Australian
licence by default. (Chapter 9 - “Sharing and Granting
Public Access to IP”)
 Agencies are now required to make licensing
decisions about whether to use Creative Commons
licences (or other open content licences) when
publicly releasing their PSI.
© 2012 Anne Fitzgerald..

35. Queensland IP Principles (2011)
 Queensland Government IP Principles (revised 2011) endorse the use of
CC licences and specify that the CC BY licence is the default licence,
to be applied as a first choice unless there are clear indicators that
the default licence is inappropriate in the circumstances:
Clause 1.3: Creative Commons licensing of government copyright
information
 In assessing the appropriate licence to apply to public information, the
Government Information Licensing Framework (GILF) mandates that:
(a) agencies license their public sector copyright information using the
Creative Commons least restrictive licence (i.e. the Attribution BY
licence) as the default licence of preference following a process of due
diligence assessment on a case-by-case basis. However this least
restrictive licence may not always be the appropriate licence to use.
© 2012 Anne Fitzgerald..

36. Examples of Government use of CC
 Australian Bureau of Statistics (ABS)
 Geoscience Australia (GA)
 Federal Treasury – Budget Papers, 2010, 2011, 2012
 ComLaw
 Australian Parliament
 Emergency response report and wiki
Credits: Background photo by Matthew Knott, Tasmania
© 2012 Anne Fitzgerald..
CC-BY-NC-SA, http://www.flickr.com/photos/mknott/606575243/

37. AUSTRALIA

38. Geoscience Australia - Landsat 8
data
 New Landsat 8 satellite to be launched in early 2013
 Upon full implementation, which involves the deployment of major infrastructure
upgrades by GA, data will be beamed from Landsat 8 on a daily basis to GA-operated
ground stations in Alice Springs and Darwin. As soon as possible after receipt and
processing, GA will make the satellite images publicly available free of charge.
 GA will make Landsat 8 satellite images available under a Creative Commons Attribution
3.0 Austalia licence (CC BY) to facilitate legal reuse of the images
 GA already involved in projects with Indonesian government and is applying CC BY to
data
 Jeff Kingwell, Section Leader of GA’s National Earth Observation Group :
Our experience is that using the Creative Commons Attribution Licence – which is
the default licence for GA information – makes the data more useful and easier to
apply. For example, to help the Indonesian government to monitor forest management, GA
supplies Landsat data from a number of foreign data archives. Since we can apply the same
licence conditions to each data source, the information is much more useful and easier to
share and reuse.
© 2012 Anne Fitzgerald..

39. AUSTRALIA

41.  2010 Federal Budget
Papers licensed under CC
Attribution 2.5
Australia
 2011 and 2012 Federal
Budget Papers under CC
Attribution 3.0 Australia

46. ABC “80 Days that Changed our Lives”
 To celebrate ABC’s 80th anniversary , ABC released 22 files capturing
historic moments on Wikimedia under CC BY-SA
 first collection of broadcast “packaged” footage released to Wikimedia
Commons under a free license

47.  http://en.wikipedia.org/wiki/History_of_the_Internet

49. NZGOAL
 NZ Government Open Access and Licensing
framework (NZGOAL)
 approved by Cabinet in 2010
 standardises the licensing of government copyright
works for reuse under CC licences (CC BY as the
default) and recommends the use of a ‘no-known
rights’ statement for material not protected by
copyright.
 provides a Review and Release Process online tool to
assess whether PSI can be released for re-use and under
what conditions

50. NZGOAL Policy Principles
“Open access to copyright works with Creative
Commons Attribution (BY) licence as default
 [Unless a restriction applies] State Services agencies should
make their copyright works which are or may be of interest or
use to people available for re-use on the most open of
licensing terms available within NZGOAL (the Open
Licensing Principle).
 To the greatest extent practicable, such works should be made
available online. The most open of licensing terms available
within NZGOAL is the Creative Commons Attribution (BY)
licence.”
 http://nzgoal.info/

51. NZGOAL and CC
 Application of CC to geographical information by
government agencies
 At the national level,:
 Land Information New Zealand (LINZ) licences information
on the Ocean Survey 20/20 web portal (which covers New
Zealand’s Exclusive Economic Zone (EEZ), Continental Shelf
and the Ross Sea Region) under a CC BY licence.
 Minister for the Environment has released its Land Cover
Database and Land Environments NZ classification under CC
BY through web portal Koordinates.
 Local government bodies have also released geographical
datasets on Koordinates under a CC BY licence (covering
subject matter from flood hazards to passenger transport
information). http://www.os2020.org.nz/copyright-
attributing/.
 Wellington City Council,
 Northland Regional Council; and
 Auckland Regional Council

54. Christchurch Earthquake 2011
 Through the standardised review and release process, government
agencies rapidly released CC-licensed information eg LINZ’s aerial
photographs of the city’s damage.
 ‘Post-quake imagery of Christchurch carries CC licence’, CC NZ News, 2
April 2011, available at
http://www.creativecommons.org.nz/news_and_events/news/post_quake_
imagery_of_christchurch_carries_cc_licence.
 A non-government project, the Christchurch Recovery Map, an open
ad crowd-sourced map application recording the damage and relief
reports through the city, was licensed under CC BY.
 http://eq.org.nz/ (note that the map is no longer available).
 Various projects documenting the devastation and recovery efforts (by
organizations such as the Canterbury Earthquake Recovery Authority,
the Defence Force, and the Ministry of Civil Defence and Emergency
Management) have been released under CC licences.
 See Ross Becker Photos at http://cera.govt.nz/ross-becker-photos and on
Picasa at https://picasaweb.google.com/RossBeckerNZ/.
 See Flickr Collection: Christchurch Earthquake February 2011, available at
http://www.flickr.com/photos/nzdefenceforce/collections/721576261436107
31/.
 See ‘VIDEO: Central Christchurch, two weeks after the quake’, National
Business Review, 19 March 2011, available at
http://www.nbr.co.nz/article/video-central-christchurch-two-weeks-after-
quake-ck-88665.

57. Vocational training materials
 vocational training packages (modules) on
training.gov.au
 previously licensed under AEShareNet licences
 1n 2011 shifted to CC BY ND licence – see
http://training.gov.au/Home/Copyright
© 2012 Anne Fitzgerald..

58. Adapt project: teaching
adaptations
 2012 pilot project - Bridging the Gap: teaching adaptations across
the disciplines and sharing content for curriculum renewal.
 led by the University of Tasmania, with support from the
Australian Government’s Office of Learning and Teaching (OLT)
 aims to ‘enhance the teaching of adaptations (the study of the
adaptation of an original novel, play, film, poem, video game or
other form of narrative to a different medium) in an Australian
context through the creation of a community of practice of
scholars’.
 will develop a repository of OER relevant to learning and
teaching adaptations.
 See http://www.teaching-learning.utas.edu.au/designing/open-
educational-resources/open-education-resources.
© 2012 Anne Fitzgerald..

59. USQ OpenCourseWare
 University of Southern Queensland (USQ), based in
regional areas (Toowomba, Hervey Bay and
Springfield) provides distance education programs
 75% of USQ’s students study by distance education
 USQ’s OpenCourseWare (OCW) portal makes 10
courses available under a CC BY-NC-SA licence.
 http://ocw.usq.edu.au/.
 See the OCW FAQs on how to cite USQ’s materials:
http://ocw.usq.edu.au/mod/resource/view.php?id=105#1
2.
© 2012 Anne Fitzgerald..

61. © 2012 Anne Fitzgerald..

62. National Health and Medical Research
Council (NHMRC) policy on access to
research publications and data
 Revised policy, effective 1 July 2012, mandates that:
 any publications arising from an NHMRC supported
research project must be deposited into an open
access institutional repository within a twelve
month period from the date of publication.
 http://www.nhmrc.gov.au/media/notices/2012/revised-
policy-dissemination-research-findings
© 2012 Anne Fitzgerald..

63. Joint Statement on Data Sharing of
Public Health Research
 NHMRC is a signatory to the Joint Statement on Data
Sharing of Public Health Research issued by the Wellcome
Trust
 Joint Statement expresses a commitment to the timely and
responsible sharing of public health data:
 Much of the data collection that could improve public health
research is expensive and time-consuming. As public and
charitable funders of this research, we believe that making
research data sets available to investigators beyond the
original research team in a timely and responsible
manner, subject to appropriate safeguards, will generate
three key benefits:
 faster progress in improving health
 better value for money
 higher quality science.
© 2012 Anne Fitzgerald..

65. Collaborative data sharing
 Atlas of Living Australia - www.ala.org.au
 funded by the Australian Government to develop an
authoritative, freely accessible, distributed and
federated biodiversity data management system
 encourages contributors to upload their materials
under a CC licence via the system’s contribution
form.
 See ALA Data Licensing FAQs at
http://www.ala.org.au/faq/data-licensing/.
© 2012 Anne Fitzgerald..

68. Reef and Rainforest Research Centre

71. Advantages of using CC
 Discoverability and retrieval of CC materials by search engines (CC
machine readable code)
 Explicit statement of re-use rights: information provided upfront to
users about what they CAN do with the material
 Standard, internationally recognised icons depict the licence
conditions – surmounts language barriers
 Facilitates legal re-mix and re-use of CC-licensed materials
 Identification and attribution of the creator/owner of the licensed
material
 Licences have been held to be valid and enforceable by courts
© 2012 Anne Fitzgerald..

72. Advantages of CC in the public
sector
 mirrors the fundamental purpose for recognising
copyright in government materials
 supports government’s open access policy objectives –
contributes to the body of publicly funded content
available for innovative reuse
 clear statement about the source of the data
(attribution/provenance) – increased user confidence
 avoids financial and technical lock-up of taxpayer-funded
materials
© 2012 Anne Fitzgerald..

73. CC & Government Guide
CC & Government Guide: Using Creative
Commons 3.0 Australia Licences on Government
Copyright Materials
Anne Fitzgerald, Neale Hooper & Cheryl Foong (2011)
<http://eprints.qut.edu.au/38364/>
<http://creativecommons.org.au/sectors/government>
Townsville Tripping by Rob and Stephanie Levy
© 2012 Anne Fitzgerald.. http://www.flickr.com/photos/robandstephanielevy/1557428475/

74. Thank you
 Professor Anne Fitzgerald
 QUT Law School
 CC Australia
 Publications
(http://eprints.qut.edu.au/view/person/Fitzgerald,_Anne.
html)
 Access to Public Sector Information
(http://www.aupsi.org)
 Creative Commons Australia
(http://creativecommons.org.au/)
© 2012 Anne Fitzgerald. Licensed under Creative Commons Attribution 3.0 Australia.