Knowledge Policy for the 21st Century: A Legal Perspective

Mark Perry & Brian Fitzgerald
editors

The 21st century started with a bang, at least from the perspective of the widespread adoption of information technologies, and market hype for overvalued technology stock. There was a second bang shortly afterwards, when the bubble burst. We are now entering a period of greater stability for the appreciation of information technology in society, as well as sustained development, albeit in a financial environment that has become uncertain. This collection of essays addresses some of the issues that face our society in deciding how best to handle access to, and monopolies over, knowledge. It includes detailed examination of the social, political and legal implications of free and open source software. As well it looks at the future of copyright in the digital age.

This book arose out of a conference held in April 2007 at the University of Western Ontario Faculty of Law. The conference was a collaborative research exercise between the University of Western Ontario and The Queensland University of Technology.

Introduction

Considerations for a 21st-century Knowledge Policy

Mark Perry & Brian Fitzgerald
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Chapter 1

Free Software

Richard Stallman*

“Free software” means the software that respects the user’s freedom, respects your freedom. Software that’s not free is proprietary software; that is, software that tramples the user’s freedom. Proprietary software keeps the users divided and helpless: divided because everyone is forbidden to share with anybody else, and helpless because the users don’t have the source code, so they can’t change anything. They can’t even tell independently what the program is really doing to them.

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Chapter 2

Free Software as a Democratic Principle

Nic Suzor, Brian Fitzgerald, & Mark Perry

Software forms an important part of the interface between citizens and their government. An increasing amount of government functions are being performed, controlled, or delivered electronically.1 This software, like all language, is never value-neutral, but must, to some extent, reflect the values of the coder and proprietor.2 The move that many governments are making towards e-governance,3 and the increasing reliance that is being placed upon software in government, necessitates a rethinking of the relationships of power and control that are embodied in software.

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Chapter 3

A Theory of Disclosure for Security and Competitive Reasons: Open Source, Proprietary Software, and Government Systems

Peter P. Swire

A previous article, “A Model for When Disclosure Helps Security: What is Different about Computer and Network Security?” proposed a model for when disclosure helps or hurts security and provided reasons why computer security is often different in this respect than physical security.1 This chapter provides a general approach for describing the incentives of actors to disclose information about their software or systems. A chief point of this chapter is that the incentives of disclosure depend on two largely independent assessments: (i) the degree to which disclosure helps or hurts security, and (ii) the degree to which disclosure creates competitive advantages or disadvantages for the organization.

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Chapter 4

FLOW Licensing and Contracting: Applied Intellectual Resource Economics in the Canadian Public Sector

Joseph R. Potvin

The paper explains and illustrates a generic approach to licensing and contracting for free-libre-open works (FLOW). Concepts in economics, accounting, and copyright law are summarized to provide a view of the business purposes of free-libre-open resource availability. An original way is presented to summarize the differences amongst various major free-libreopen licence types, emphasizing their rules for the distribution of derivative works. The paper also offers a generic naming convention for comprehensive models that combine sets of licensing and contracting choices for communities working on free-libre-open resources. A particular model described in the paper is named FLOW.through.1, and the example used to illustrate its application is the first free-libre-open project to be initiated by the Treasury Board Secretariat of the Canadian Government.

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Chapter 5

Free Software and Software-defined Radio: An Overview of New FCC Rules

Matt Norwood

The US Federal Communication Commission (FCC) recently promulgated rules governing the use of free and open source software (FOSS) in software-defined radio devices. While the rules encourage the use of FOSS for some applications, they also express reservations about its employment in certain security-critical systems, taking the position that secrecy results in better security system design. This paper examines the immediate implications of this mixed ruling for hardware manufacturers and independent software developers, as well as its likely meaning for the long-term relationship between the FCC and developers of new technologies. The paper also makes a normative argument that regulators should re-examine their reliance on secrecy as a method for ensuring the design of secure systems.

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Chapter 6

The Legality of Free and Open Source Software Licences: The Case of Jacobsen v. Katzer

Brian Fitzgerald & Rami Olwan

In the last ten years “open source” has become a paradigm for thinking about innovation. While its origin can be found in the everyday activity of sharing knowledge in order to learn how to accomplish things, the application of these ideas in the area of technology and innovation have in recent times been most clearly associated with Richard Stallman and the Free Software Foundation. Stallman, after a frustrating experience trying to fix a printer in his lab, launched what is known as the free and open source software movement. The idea is that if we share and distribute the human readable software code (source code) and not just the machine readable code (binary code), then we will be able to understand how the software works more quickly and thereby take the necessary action.

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Chapter 7

Facilitating Meaningful Public Access to Primary Legal Information: Designing an Integrated Legal Environment

Marcus Bornfreund & Phil Surette

In this chapter we, the authors, describe our experience building a tool for browsing statutes and other primary legal information in a rich, integrated electronic environment. This work builds upon an earlier project: a system for automatically extracting the structure inherent in the unstructured corpus of Canadian federal legislation, which is published in HTML format.

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Chapter 8

Blogs and the Law: Key Legal Issues for the Blogosphere

Damien O’Brien

Over the past few years the blogosphere (the community or social network of blogs) has experienced an unprecedented level of growth, in terms of both the popularity of blogs and the number of blogs in existence. The very nature of a blog — a short, instantaneous, highly personalized form of online communication that is accessible throughout the world — fundamentally challenges the application and operation of traditional legal doctrines. However, this relationship between the blogosphere and the law is yet to be fully conceptualized from a legal perspective. Therefore, the purpose of this chapter is to consider from an Internet-law perspective some of the most critical legal issues that are currently facing blogs, their authors, bloggers, and the intermediaries that host blogs. The chapter will first provide a broad overview of blogs by examining the nature of a blog, how the courts have interpreted blogs, the rise of the blogosphere, and the emergence of socalled “new generation blogs.” The chapter will then consider some of the key legal issues affecting blogs, including copyright law, defamation law, Internet jurisdiction, employment law, and intermediary liability of blog providers. Finally, the chapter will conclude with some thoughts on how blogs and the blogosphere will survive the many challenging legal issues that they are likely to encounter.

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Chapter 9

The School Girl, the Billboard, and Virgin: The Virgin Mobile Case and the Use of Creative Commons Licensed Photographs by Commercial Entities

Emma Carroll & Jessica Coates

It’s Friday afternoon. That one drink at lunch turned into more than a couple, resulting in an emergency nap under your desk back at the office. The boss need never know. But unfortunately it’s 2007: the digital age. Someone in the office that day had a camera, and unbeknownst to you that photograph of you snoring under the computer was posted on the Internet. All in good fun, right? But what if the photographer who decided to post the embarrassing photograph online did so under a Creative Commons licence that allows commercial reuse and the image is subsequently plucked off the Internet for use in a nationwide advertising campaign?

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Chapter 10

Abandoning Eden: The Google Print Library Project

Dilan Thampapillai

No one who has travelled to Oxford, Cambridge, or Harvard would deny the quaint pleasure of visiting the small bookstores that nestle in the streets around these universities. Certainly, John Updike, writing in the New York Times Book Review acknowledged this fact whilst bemoaning the spectre of a digital library.1 Barnes & Noble, Borders, and Kinokuniya may well have established themselves as large commercial bookstores, but they cannot replicate the atmosphere of their smaller counterparts. Similarly, Amazon and other online booksellers have little chance of coming close to the shops of the dreaming spires. But the experience of the Harvard Bookstore, which is by no means small, is not something that everybody has the chance to enjoy. As such, it was certainly fair that Siva Vaidhyanathan, writing in the University of California Davis Law Review, would criticize Updike’s remarks as elitist.

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Chapter 11

Third-party Copyright and Public Information Infrastructure/Registries: How Much Copyright Tax Must the Public Pay?

Brian Fitzgerald & Benedict Atkinson

In a case currently before the High Court of Australia (Copyright Agency Limited (CAL) v. State of New South Wales) the fundamental question at issue is whether the owner (in this case, surveyors) of copyrighted material (in this case, land survey plans) that is submitted as part of a public register (in this case, the land titles registry), with all the benefits that entails, should nonetheless have the right to charge the government and end-users every time they reproduce or communicate that material to the public.

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Chapter 12

The Academic Authorship, Publishing Agreements, and Open Access Survey: An Australian Perspective

Anthony Austin, Maree Heffernan, & Nikki David

In 2007 the Open Access to Knowledge (OAK) Law Project undertook an online survey, Academic Authorship, Publishing Agreements and Open Access, which was conducted from 2 October 2007 through to 9 November 2007. The survey attracted 509 participants.1 The survey was designed to acquire empirical evidence relating to academic authors’ perceptions of open access, copyright ownership, online repositories, open access journals, and publishing agreements. The survey also sought to obtain evidence on two specific themes. First, what have been the experiences of academic authors in negotiating and entering into publishing agreements with commercial publishers? Second, what motivates and what prevents academic authors from depositing their work into online repositories or publishing their work with open access journals?

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Chapter 13

A Relational Theory of Authorship

Sampsung Xiaoxiang Shi & Brian Fitzgerald

Solely from the individual or from the cultural context in which he inhabits. Writers such as Professors Woodmansee, Jaszi, and Cohen have asserted a cultural theory of authorship.1 On the one hand, there is the liberal philosophy of autonomous creativity evidenced in the notion of a “romantic author” (after the period known as romanticism). On the other hand, we have more of a communitarian notion — that the author acts in a cultural context and authorship to some extent must be linked back to the social existence within which the author is situated.

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Chapter 14

Access to Digital Information: Gift or Right?

Margaret Ann Wilkinson

There are different factors involved in creating the intellectual property environment within which digital information transactions take place in a networked world. The most important is the attitude of the governments of the various nation states in which aspects of the transactions occur. These attitudes, in turn, shape, and are also shaped by, the second factor involved, international agreements. The third factor is the activity of intellectual property owners. Together these three create the environment within which users experience both digital and non-digital information access to information. That environment, however, is not the same for each nation state, nor does the environment necessarily remain static: for each nation state, the copyright environment reflects a complex interplay between the three factors. This paper will explore the role of “open source” and “open access” movements in Canada and in the United States within the context of the three factors because the blend of the three in the two jurisdictions is different and therefore creates two different environments for access to digital information.

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Chapter 15

Creating a Legal Framework for Copyright Management of Open Access within the Australian Academic and Research Sector

Brian Fitzgerald, Anne Fitzgerald, Mark Perry, Scott Kiel-Chisholm, Erin Driscoll, Dilan Thampapillai, & Jessica Coates

There is an increasing recognition, in Australia and internationally, that access to knowledge is a key driver of social, cultural, and economic development. The argument for greater access to, and reuse of, research outputs is reinforced by the fact that much research in Australia is funded by public money and, consequently, that there is a public benefit to be served by allowing citizens to access the outputs they have funded.1 This recognition poses both legal and policy challenges, in terms of existing legal frameworks such as copyright law and traditional business models.

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Chapter 16

Digital Copyright Reform in New Zealand: An Own-Interest Approach for a Small Market Economy

Susy Frankel

Protection is to encourage the creation and proliferation of copyrighted works. How much protection is needed to actually encourage the creation of copyrighted works is frequently debated. The basic contention is that over-protection may in fact have the opposite effect to encouraging creativity. In the digital age the battle over what is the appropriate level of copyright protection has become a worldwide debate. Some countries maintain that a high level of protection is a benefit not only for their own economies, but also for the world economy. Others regard lower levels of protection as necessary to foster growth and, in some instances, copyright-related technology transfer. A small market economy, such as New Zealand, finds itself in the middle ground in this debate. With interests in common with both the developed and the developing world, New Zealand has created an own-interest approach to digital copyright protection. This chapter discusses that approach.

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Contributors
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