The Commonwealth Attorney-General's department has released the Australian Government Intellectual Property Law Manual, which acts as a guide for government departments and agencies in their management of intellectual property assets. Of particular interest is a renewed focus on the use of the Creative Commons system of licensing. This follows the release of the Guidelines on Licensing Public Sector Information for Australian Government Agencies by the Australian Government Information Office following the government's response to the Government 2.0 Taskforce's report Engage: Getting on with Government 2.0.
Over recent years there has been increasing focus on ensuring that Australian Government departments make their material more freely available to the public. To date, the Commonwealth, along with the Victorian, Queensland and Tasmanian State Governments, have implemented Creative Commons as a default licensing tool. For example, materials from the Australian Parliamentary website, including Hansard and Committee Reports, are now distributed using Creative Commons licensing.
Creative Commons is a useful tool for distributing information and enabling the public to utilise that information. However, it is not always suitable for government and careful consideration needs to be given to whether it is always appropriate.
How Does a Creative Commons Licensing System Work?
Creative Commons licensing was developed by an international not-for-profit of the same name, which promotes the free licensing of copyright works. The foundation develops ready-made licences for works that are easily affixed and deployable free of charge. Versions of the licences tailor-made for Australia are developed by their local affiliate, Creative Commons Australia. It is these licences, version 3.0 which should be used by government departments in Australia.
The Licences are variations on a theme: offering a basic structure with added optional terms. Works licensed under a Creative Commons scheme do not lose or 'give up' the owner's copyright, but they do allow others 'more liberal use of your material, but only on certain conditions.'
There are six Creative Commons' licences. The descriptions below are provided by Creative Commons Australia on a CC BY Licence version 3.0.
- Attribution ('CC BY')
This licence lets others distribute, remix and build upon a work, even commercially, as long as they credit the original creator/s (and any other nominated parties). This is the most accommodating of the licences in terms of what others can do with the work.
- Attribution-Share Alike ('CC BY-SA')
This licence lets others distribute, remix and build upon the work, even for commercial purposes, as long as they credit the original creator/s (and any other nominated parties) and license any new creations based on the work under the same terms. All new derivative works will carry the same licence, so will also allow commercial use.
In other words, you agree to share your materials with others, if they will share their new works in return. This licence is often compared to the free software licences, known as 'copyleft.'
- Attribution-No Derivative Works ('CC
This licence allows others to distribute the work, even for commercial purposes, as long as the work is unchanged, and the original creator/s (and any other nominated parties) are credited.
- Attribution-Noncommercial ('CC BY-NC')
This licence lets others distribute, remix and build upon the work, but only if it is for non-commercial purposes and they credit the original creator/s (and any other nominated parties). They don't have to license their derivative works on the same terms.
- Attribution-Noncommercial-Share Alike ('CC
This licence lets others distribute, remix and build upon the work, but only if it is for non-commercial purposes, they credit the original creator/s (and any other nominated parties) and they license their derivative works under the same terms.
- Attribution-Noncommercial-No Derivatives ('CC
This licence is the most restrictive of the six main licences, allowing redistribution of the work in its current form only. This licence is often called the 'free advertising' licence because it allows others to download and share the work as long as they credit the original creator/s (and any other nominated parties), they don't change the material in any way and they don't use it commercially.
The licences progress from the most liberal to the most restrictive.
Creative Commons can be a very useful licensing structure. However, following the overall IP Principle 8 that agencies should maintain a flexible approach in considering options for ownership, management and use of IP and despite the recommendations of the Government's IP Manual, a Creative Commons licensing regime is not always suitable for public sector organisations.
Pitfalls and Issues for Government Departments
- Prior to using a Creative Commons licence it is important to ensure that the department itself has sufficient rights in the work to grant a Creative Commons licence.
- Deciding which Creative Commons licence to use, or to use one at all requires careful consideration of the intricacies of that particular licence and its terms. There is little control over how information is adapted or distributed after a Creative Commons regime applies.
- Preventing use of the work by certain individuals or organisations is problematic under Creative Commons, as is withdrawing the licence altogether. Creative Commons licences are generally irrevocable and last as long as the copyright in the work subsists.
- Like all copyright licences, Creative Commons licences are not self-enforcing. Where licensed materials are used or abused contrary to their licence, it will still remain the responsibility of the government department to pursue those who violate the licensing scheme.
- Because some Creative Commons licences are incompatible, issues arise where multiple works are infused into a new work with contradictory licensing. Untangling the work of Government departments from these conflicts can be complex.
- Some sensitive government information will never be suitable for distribution under a Creative Commons licence, and careful consideration needs to be given to the effect of granting the public rights to use, distribute, and adapt government data.
The Intellectual Property team at Norton Rose Australia can assist you with evaluating whether information is suitable to be released under a Creative Commons licence, and assist you with understanding how those licences operate nationally and internationally. Sometimes, licences may need to be adapted for certain types of information or distribution. As the licences themselves are covered by the Creative Commons regime, Norton Rose Australia can assist in adapting licensing to the needs of your Department or Agency.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.