Report to the Government 2.0 Taskforce : Project 4 - Copyright Law and Intellectual Property

This report is the primary output of Project 4: Copyright and Intellectual Property, the aim of which was to produce a report considering how greater access to and use of government information could be achieved within the scope of the current copyright law. In our submission for Project 4, we undertook to address: •the policy rationales underlying copyright and how they apply in the context of materials owned, held and used by government; • the recommendations of the Copyright Law Review Committee (CLRC) in its 2005 report on Crown copyright; • the legislative and regulatory barriers to information sharing in key domains, including where legal impediments such as copyright have been relied upon (whether rightly or wrongly) to justify a refusal to provide access to government data; • copyright licensing models appropriate to government materials and examples of licensing initiatives in Australia and other relevant jurisdictions; and • issues specific to the galleries, libraries, archives and museums (“GLAM”) sector, including management of copyright in legacy materials and “orphan” works. In addressing these areas, we analysed the submissions received in response to the Government 2.0 Taskforce Issues Paper, consulted with members of the Task Force as well as several key stakeholders and considered the comments posted on the Task Force’s blog. This Project Report sets out our findings on the above issues. It puts forward recommendations for consideration by the Government 2.0 Task Force on steps that can be taken to ensure that copyright and intellectual property promote access to and use of government information.

Robbery under arms: Copyright law and the Australia-United States free trade agreement

TThis article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

Wikipedia, collective authorship, and the politics of knowledge

This chapter considers the legal ramifications of Wikipedia, and other online media, such as the Encyclopedia of Life. Nathaniel Tkacz (2007) has observed: 'Wikipedia is an ideal entry-point from which to approach the shifting character of knowledge in contemporary society.' He observes: 'Scholarship on Wikipedia from computer science, history, philosophy, pedagogy and media studies has moved beyond speculation regarding its considerable potential, to the task of interpreting - and potentially intervening in - the significance of Wikipedia's impact' (Tkacz 2007). After an introduction, Part II considers the evolution and development of Wikipedia, and the legal troubles that have attended it. It also considers the establishment of rival online encyclopedia - such as Citizendium set up by Larry Sanger, the co-founder of Wikipedia; and Knol, the mysterious new project of Google. Part III explores the use of mass, collaborative authorship in the field of science. In particular, it looks at the development of the Encyclopedia of Life, which seeks to document the world's biodiversity. This chapter expresses concern that Wiki-based software had to develop in a largely hostile and inimical legal environment. It contends that copyright law and related fields of intellectual property need to be reformed in order better to accommodate users of copyright material (Rimmer 2007). This chapter makes a number of recommendations. First, there is a need to acknowledge and recognize forms of mass, collaborative production and consumption - not just individual authorship. Second, the view of a copyright 'work' and other subject matter as a complete and closed piece of cultural production also should be reconceptualised. Third, the defense of fair use should be expanded to accommodate a wide range of amateur, peer-to-peer production activities - not only in the United States, but in other jurisdictions as well. Fourth, the safe harbor protections accorded to Internet intermediaries, such as Wikipedia, should be strengthened. Fifth, there should be a defense in respect of the use of 'orphan works' - especially in cases of large-scale digitization. Sixth, the innovations of open source licensing should be expressly incorporated and entrenched within the formal framework of copyright laws. Finally, courts should craft judicial remedies to take into account concerns about political censorship and freedom of speech.

Capital Works Procurement: The Selection of a Building Procurement Method

The determination of the most appropriate procurement method for capital works projects is a challenging task for the Department of Housing and Works (DHW) and other Western Australian State Government Agencies because of the array of assessment criteria that are considered and the procurement methods that are available. A number of different procurement systems can be used to deliver capital works projects such a traditional, design and construct and management. Sub-classifications of these systems have proliferated and continue to emerge in response to market demands. The selection of an inappropriate procurement method may lead to undesirable project outcomes. To facilitate DHW in selecting an appropriate procurement method for its capital works projects, a six step procurement method selection process is presented. The characteristics of the most common forms of procurement method used in Australia are presented. Case studies where procurement methods have been used for specific types of capital works in Western Australia are offered to provide a reference point and learning opportunity for procurement method selection.

Characterising creativity : a holistic methodology for the assessment of creative works

This paper reports on the early stages of a design experiment in educational assessment that challenges the dichotomous legacy evident in many assessment activities. Combining social networking technologies with the sociology of education the paper proposes that assessment activities are best understood as a negotiable field of exchange. In this design experiment students, peers and experts engage in explicit, "front-end" assessment (Wyatt-Smith, 2008) to translate holistic judgments into institutional, and potentiality economic capital without adhering to long lists of pre-set criteria. This approach invites participants to use social networking technologies to judge creative works using scatter graphs, keywords and tag clouds. In doing so assessors will refine their evaluative expertise and negotiate the characteristics of creative works from which criteria will emerge (Sadler, 2008). The real-time advantages of web-based technologies will aggregate, externalise and democratise this transparent method of assessment for most, if not all, creative works that can be represented in a digital format.

Dismantling the public sector bastion : evaluation capital works

Purpose: The determination of the most appropriate procurement system for a capital works project is a challenging task for public sector clients considering the array of assessment criteria that are considered and the procurement methods that are available. This is particularly pertinent to the Western Australian public sector where they have had a propensity to use traditional lump sum as the default procurement solution despite knowing that the selection of an inappropriate procurement method may lead to cost and time overruns, claims, and disputes’ on projects. This paper presents a six step procurement method evaluation approach that requires public sector agencies to consider in detail an array of options so as to obtain value for money. Design/methodology/approach: A procurement evaluation approach is developed and is examined using a focus group of 12 participants comprising of a public sector client, project team and key stakeholders. The focus group was used to examine the developed approach in the context of a real-life capital works project. Findings: The procurement method evaluation approach was deemed to be pragmatic and enabled decision-makers to re-evaluate outcomes from previous steps in the process. All focus group participants stated the six step process enabled a recommendation that was grounded in reflection and detailed evaluation. Practical implications: The developed procurement approach has enabled the public sector client evaluate the way in which they view procurement method selection and examine how they obtain ‘value for money’. Originality/value: The six step procurement approach makes use of quantitative and qualitative techniques and is reliant on discourse and reflection in making a procurement method recommendation. Consequently, the approach enables public sector clients to account for the complexities often associated with procurement selection.

What works elsewhere? A review of physical activity intervention studies

Obesity and type 2 diabetes mellitus (T2D) have reached epidemic proportions in many parts of the world with numbers projected to rise dramatically in coming decades (Wang and Lobstein, 2006; Zaninotto et al., 2006). In Australia, and consistent with much of the developed world, the problem has been described as a ‘juggernaut’ that is out of control (Zimmet and James, 2007). Unfortunately the burgeoning problem of non-communicable diseases, including obesity and T2D, is also impacting developing nations as populations are undergoing a nutrition transition (Caballero, 2005). The increased prevalence of overweight and obesity in children, adolescents and adults in both the developed and developing world is consistent with reductions in all forms of physical activity (Brownson et al., 2005). This brief paper provides an overview of the importance of physical activity and an outline of physical activity intervention studies with particular reference to the growing years. As many interventions studies involving physical activity have been undertaken in the context of childhood obesity prevention (Lobstein et al., 2004), and an increasing proportion of the childhood population is overweight or obese, this is a major focus of discussion.

The public sector’s perspective on procuring public works projects : comparing the views of practitioners in Hong Kong and Australia

Hong Kong has been one of the early jurisdictions to adopt Public Private Partnership (PPP) model for delivering large public infrastructure projects. The development of this procurement approach in Hong Kong has followed an intricate path. As such, it is believed that there are a number of areas which are interesting to unveil. As part of a comprehensive research study looking at implementing PPPs, interviews with experienced local industrial practitioners from the public sector were conducted to realize their perspective on the topic of procuring public works projects. Amongst these interviews, fourteen were launched government officials and advisers. The interview findings show that the majority of the Hong Kong and Australian interviewees had previously conducted some kind of research in the field of PPP. Both groups of interviewees agreed that “PPPs gain private sector’s added efficiency/expertise/management skills” when compared to projects procured traditionally. Also, both groups of interviewees felt that projects best suited to use PPP are those that have an “Economic business case”. The interviewees believed that “Contractor’s performance” could be used as key performance indicators for PPP projects. A large number of critical success factors were identified by the interviewees for PPP projects; two of these were similar for both groups of interviewees. These included “Project objectives well defined” and “Partnership spirit/commitment/trust”. Finally it was found that in-house guidance materials were more common in the organizations of the Australian interviewees compared to the Hong Kong ones. This paper studies the views of the public sector towards the topic of PPPs in Hong Kong and Australia, which helps to answer some of the queries that both academics and the private sector in these jurisdictions are keen to know. As a result the private sector can be more prepared when negotiating with the public sector and realise their needs better, academics on the other hand are provided a wider perspective of this topic benefiting the research industry at large.

The researcher’s perspective on procuring public works projects

Purpose: As part of a comprehensive research study looking at implementing PPPs, interviews with experienced researchers were conducted to realize their views on private sector involvement in public works projects. Design / methodology / approach: Amongst these interviews, five were launched with academics from Hong Kong and Australia, and two were conducted with Legislative Councillors of the Hong Kong Special Administration Region (HKSAR) government. Findings: The interview findings show that both Hong Kong and Australian interviewees had previously conducted some kind of research in the field of PPP. The interviewees highlighted that “Different risk profiles” and “Private sector more innovative / efficient” were the main differences between projects that were procured by PPP and traditionally. Other differences include risk transfer. In a PPP arrangement the public sector passes on a substantial amount of the project risks to the private sector, whereas in a traditional case the public sector would take the largest responsibility in bearing these risks. Another common feature of the private sector is that they tend to be more efficient and innovative when compared to the public sector hence their expertise is often reflected in PPP projects. The interviewees agreed that the key performance indicators for PPP projects were unique depending on the individual project. The critical success factors mentioned by both groups of interviewees included “Transparent process”, “Project dependent” and “Market need”. Due to the fact that PPP projects tend to be large scaled costly projects, adequate transparency in the process is necessary in order to demonstrate that a fair selection and tendering process is conducted. A market need for the project is also important to ensure that the project will be financially secure and that the private sector can make a reasonable profit to cover their project expenditure. Originality / value: The findings from this study have enabled a comparative analysis between the views of researchers in two completely different jurisdictions. With the growing popularity to implement PPP projects, it is believed that the results presented in this paper would be of interest to the industry at large.