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D Troubleshooting concerns about Creative Commons licensing Concern: The Commonwealth would no longer control the licensing of its own material 331 Explanation: The US not-for-profit organisation Creative Commons Corp. is the licence steward for the CC licences. In this role, CC develops versions of the licences in close consultation with the community and key licence adopters, to reflect international legal and policy developments and community experience. The versioning process is lengthy and transparent, with drafts being posted online and discussed via mailing lists. Like other key stakeholders, the Commonwealth can participate in this process. Once a new licence version is finalised however, the individual licensor decides whether to change the existing CC licence attaching to their work. If they make no such election the original licence continues to apply despite the availability of later versions.   Concern: CC licences are irrevocable 332 Explanation: CC licences grant the public a perpetual right to use the work, for the full term of copyright. The perpetual nature of a CC licence is seen by some government advisors as creating a risk. Even if there may be some risk to the government as a practical matter the risk is likely to be very small. Commonwealth revocation of copyright permission is in fact rare. Further the government’s inability to revoke the licence gives downstream users and remixers’ confidence in using licensed work consistent with its licence terms. This confidence is vital to achieve the economic, social and innovation benefits of government information discussed elsewhere in this report. Concern: Absence of no endorsement or misleading use provision 333 Explanation: An express ‘no endorsement’ provision has been drafted for inclusion in the Creative Commons Australian 3.0 licence version, which is currently being finalised. 334 It expressly prohibits a person who receives CC licensed material suggesting that they have approval, sponsorship or endorsement from the licensor, without written permission. 335 Even without this licensors also have some existing protection under existing Australian laws prohibiting misleading and deceptive conduct. Concern: Third party copyright material 336 Explanation: The issue has been raised that, if there is any third party owned copyright material included in a government document, the government agency would need to ensure that the third party was aware of the proposed licence for the government document. This is the situation with or without a CC licence. The only reason an agency may want to pay particular attention to this issue when using a CC licence is because it may represent a change in standard licensing practice and thus, warrant additional discussion. Concern: Attribution stacking Explanation: Concern has been expressed that the problem of ‘attribution stacking’ may occur where successive derivatives of Creative Commons licensed material build up. This concern has been raised by those in the open data movement to argue against the use of CC licences and in favour of a complete waiver of copyright (by a Public Domain Dedication or ccZero). 337 In the interests of rapid opening PSI, the taskforce has not made recommendations for Public Domain or ccZero release. In addition to the fact that doing so would likely raise more fundamental legal issues, attribution, including attribution stacking can play a helpful role in supporting data integrity through multiple chains of use and reuse. Technical and/or practical solutions, as evidenced by the free software and wiki communities, exist to address this concern. 331 Attorney-General’s Department, Submission to Towards Government 2.0: An Issues Paper, para. 5 and 30, http://gov2.net.au/submissions/. 332 See id. para. 31; see also, Submission of the Copyright Agency Limited, p. 6; Submission of Australian Copyright Council, para. 95, http://gov2.net.au/submissions/. 333 See AGD Submission, para. 31. 334 See http://creativecommons.org.au/v3draft. 335 See http://creativecommons.org.au/v3draft. 336 See AGD Submission para. 31. 337 See e.g. http://sciencecommons.org/projects/publishing/open-access-data-protocol/. 98 Engage: <strong>Getting</strong> on with Government 2.0 | report of the government 2.0 taskforce
Concern: Enforcement 338 Explanation: To date, CC licences have not been considered by or enforced in an Australian court. However, in Jacobsen v Katzer (2008) the United States Court of Appeals for the Federal Circuit enforced an open source software licence, in a judgment that made it clear that the US courts will uphold open source and CC licences, even though they are applied to copyright materials distributed for no financial return. CC licences have also been enforced in the Netherlands and Bulgaria, 339 treated as valid in court cases in Spain and enforced in Norway. 340 Concern: Lack of simplicity for users 341 Explanation: CC licences have been variously criticised for being longer than the standard Commonwealth notice. However, government agencies have readily incorporated a CC licence notice within a standard Commonwealth copyright notice without unduly complicating it. 342 In addition the CC system allows agencies to make a simple statement indicating the CC licence applying to their material and then allows the user to read further if they wish. The licence notice links through to a ‘Commons Deed’ (a human-readable short statement of the key licence terms), which in turn links through to the Legal Code (the full, ‘lawyer-readable’ licence).   Concern: Inability to customise or add conditions Explanation: It is correct that CC licences derive their benefit as clear and internationally recognised copyright licences by having standard terms, that are not customisable for an individual government agency (beyond choosing between the different licence conditions of NonCommercial, ShareAlike, NoDerivatives). This is necessary if they are to perform their role as machinereadable standards. Concern: The Commonwealth can draft its own licence to achieve the same ends Explanation: Any licence that can achieve the objectives of open access is to be welcomed and encouraged. There are several reasons, however, for being cautious about whether it is possible or useful to expend time and resources preparing a ‘same but different’ open access licence. Firstly, CC licences were launched in 2002 and, over seven years, the licence icons and permissions have become well-recognised and understood by the global public. CC licences are machine-readable and fully indexed by leading search engines. 343 Any specially drafted government licence will have to start afresh in terms of building community understanding and confidence about using and reusing government materials, which will have, at least, a delaying affect on the innovative potential of an open access approach. It is also unlikely a specially crafted licence will be machine-readable. Secondly, CC licences have evolved with the benefit of community and licensor/ee feedback to become finely tuned to give licensors appropriate protections whilst granting licensees effective and clear use and reuse rights. Any specially crafted government licence would lack the benefit of this extensive experience and thus, may not effectively achieve its objectives. Finally, any difference in licence terms as between a specially crafted government licence and a Creative Commons licence may lead to the creation of content ghettos. Until recently, 344 the ‘same but different’ nature of the licence terms that applied to Wikipedia meant that none of the content on Wikipedia could be remixed with wikis that were licensed under a Creative Commons Attribution-ShareAlike licence. Releasing Australian Government materials under a specially crafted licence may prevent Australian Government materials from being remixed with any material aside from other government materials that have been licensed under the same specially crafted licence, which would also limit its reuse potential. 338 See AGD Submission, para. 31. 339 See ‘Creative Commons Bulgaria Licence upheld in court’, Veni Markovski, 9 June 2008, at http://blog.veni.com/p=494. 340 See ‘Creative Commons License Honoured, US$ 2150 for Flickr Photo’, on Gisele Hannemyr’s ‘Trails’ blog, 15 October 2006, at http://heim.ifi.uio.no/~gisle/blog/p=92. 341 See AGD Submission, para. 31; also Copyright Council Submission para. 95. 342 See http://www.ga.gov.au/copyright.jsp and http://www.abs.gov.au/websitedbs/D3310114.nsf/Home/%C2%A9+Copyrightopendocument#from-banner=GB or http://tinyurl.com/y9az2f5. 343 See http:// search.creativecommons.org. 344 See http://creativecommons.org/weblog/entry/15411. Engage: <strong>Getting</strong> on with Government 2.0 | report of the government 2.0 taskforce 99
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government 2.0 taskforce Engage <st
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The Hon. Lindsay Tanner, MP Ministe
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What’s in a name   ‘Engage’
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Table of contents What’s in a nam
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6 Open government — policy enable
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  Boxes Box 1: New APSC guideline
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Executive summary Web 2.0 and its p
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The National Library of Australia (
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●● properly documented and ther
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Report recommendations Central reco
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Recommendation 6: Make public secto
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7.2 The functions currently perform
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11.2 To protect the commercial-in-c
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1 What is Government 2.0 Being trul
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1.3.1 What is Web 2.0 Until recentl
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2 How does Australia compare intern
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Within the context of Government 2.
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The project will develop recommenda
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Some states and local governments h
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  electronic communications. It w
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More recent developments include:
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3 The foundations of Government 2.0
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Box 2: Permissions, information inn
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Adam Smith and his intellectual des
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1. A Government 2.0 lead agency sho
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3.5.2 The lead agency as an exempla
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The use of the internet as a platfo
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My Museum was part of the stage two
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4.4 Connecting people, problems and
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Human Rights consultation: 156 The
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of aptitude and contribution in the
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In this regard Andrea Di Maio’s w
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create new engagement/participation
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●● collaborative filtering ●
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In June 2009, the site had 25,000 p
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than marginal cost of transfer in o
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Page 127 and 128: products and data, and the implemen
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