Brisbane: 17 December 2009

The Australian Government 2.0 Taskforce commissioned a number of projects to support the production of the Taskforce Final Report that was published on 22nd December 2009.

The report from Project 4: Copyright law and intellectual property contains 11 recommendations for the Taskforce to consider.

A brief description of the report appears on page 4 and states:

“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.”

A number of the recommendations are specific to Australia but a large number of the recommendations have general applicability to the implementation of the re-use of public sector information frameworks such as the European Union Directive 2003/98/EC and the Organisation for Economic Cooperation and Development (OECD) PSI Policy principles.

• Recommendation 1 – Copyright law and management practices should give effect to the government’s established policy on open access to and reuse of PSI
• Recommendation 2 – Exercise government (Crown) copyright to give effect to the government’s policy on open access to and reuse of PSI
• Recommendation 3 - Government ownership of copyright should not be relied on to justify other restrictions on access to and reuse of PSI
• Recommendation 4 - Copyright law and management practices should facilitate complex flows of information within the public sector, between the public sector and non-government parties; and between non-government parties
• Recommendation 5 – Adopt copyright management practices appropriate to the web 2.0 environment
• Recommendation 6 – Use simple, standardised, automated licences covering use and reuse of PSI
• Recommendation 7 – Support and guidance for agencies using open content (public) licences
• Recommendation 8 – Include guidance on copyright law and practice in digitisation strategies
• Recommendation 9 – Clarify the meaning of “publication” in ss 33 and 34 to give certainty to the duration of copyright and avoid impracticality and set statutory limits to copyright protection for unpublished works
• Recommendation 10 – Develop guidance on “special cases” and uses permitted under s 200AB
• Recommendation 11 – Ensure access to legal advice and guidance about copyright law and practice

The Taskforce adopted the Project 4 recommendations within the Taskforce Recommendations (reference pages xix to xxi)(News Editor: the footnotes have not been included in the following recommendations. OIC is the proposed new Office of the Information Commissioner):

“Recommendation 6: Make public sector information open, accessible and reusable

6.1 By default Public Sector Information19 (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 re-use and adaptation, PSI released should be licensed under the Creative Commons BY standard as the default.

6.4 Use of more restrictive licensing arrangements should be reserved for special circumstances only, and such use is to be in accordance with general guidance or specific advice provided by the proposed OIC.

6.5 The proposed OIC should develop policies to maximise the extent to which existing PSI be re-licensed Creative Commons BY, taking account of undue administrative burden this may cause for agencies. To minimise administrative burden, the taskforce envisages that rules could be adopted whereby a large amount of PSI that has already been published could be automatically designated Creative Commons BY. This would include government reports, legislation and records that are already accessible to the public. Individuals or organisations should also be able to request that other PSI should be re-licensed Creative Commons BY on application, with a right of appeal should the request be refused, to the proposed new Information Commissioner.

6.6 W here ownership of the PSI data rests with the Commonwealth, data should be released under Creative Commons BY licence. Negotiation with the other party/s will be required to ensure release under Creative Commons BY for PSI which is not owned be the Commonwealth, or is shared with another party/s. New contracts or agreements with a third party should endeavour to include a clause clearly stating the Commonwealth’s obligation to publish relevant data and that this be under a Creative Commons BY licence. This policy should become mandatory for all contracts signed by the Commonwealth after June 2011.

6.7 Copyright policy should be amended so that works covered by Crown copyright are automatically licensed under a Creative Commons BY licence at the time at which Commonwealth records become available for public access under the Archives Act 1983.

6.8 Any decision to withhold the release of PSI, other than where there is a legal obligation to withhold release, should only be made with the agreement of, or in conformity with policies endorsed by the proposed OIC and consistent with the government’s FOI policy, noting that:

6.8.1 in the case of structured data, agencies must exhaust options to protect privacy and confidentiality before seeking an exemption

6.8.2 agencies must proactively identify and release, without request, such data that might reasonably be considered as holding value to parties outside the agency.

6.9 The Australian Government should engage other members of the Council of Australian Governments, to extend these principles into a national information policy agreed between all levels of government; federal, state, territory and local.

6.10 In order to accelerate the adoption of Government 2.0, in addition to any distribution arrangements they wish to pursue, agencies should ensure that the PSI they release should be discoverable and accessible via a central portal (data.gov.au) containing details of the nature, format and release of the PSI.

6.11 Within the first year of its establishment the proposed OIC, in consultation with the lead agency, should develop and agree a common methodology to inform government on the social and economic value generated from published PSI.

6.12 The major agencies under the Financial Management and Accountability Act 1997 (FMA Act) should use the common methodology to report their performance in the release of PSI in their annual reports, commencing from the first of the establishment of the proposed OIC.

6.13 The proposed OIC should annually publish a report outlining the contribution of each agency to the consolidated value of Commonwealth PSI, commencing in the first of the establishment of the proposed OIC. The report should be published online and be accessible for comment and discussion.

6.14 Following government acceptance of the initial Value of PSI Report, the proposed OIC should consider the development of a ‘lite’ version of the common methodology for use by other FMA Act agencies.

6.15 The taskforce notes the proposed changes to the FOI Amendment (Reform) Bill 2009 to have the proposed OIC issue guidelines to support the future operations of the Act as described in the Explanatory Memorandum for Schedule 2, Section 8. To ensure effective and consistent implementation of access to PSI these guidelines should give due consideration to the concepts outlined above.

Recommendation 7: Addressing issues in the operation of copyright

7.1 Agencies should apply policy guidance, or seek advice on a case by case basis, on the licensing of PSI either before its release or in administering licences after publication from the proposed OIC.

7.2 The functions currently performed by the Commonwealth Copyright Administration (CCA) unit within the Attorney-General’s Department (AGD) relating to pre- and post-licensing of copyright material should be transferred to the either the proposed OIC or the lead agency. Other administrative functions of the CCA unit should be reviewed to identify which of the functions should remain within AGD and those that should transfer to the proposed OIC

7.3 It is recommended that the proposed OIC examine the current state of copyright law with regard to orphan works (including s.200AB), with the aim of recommending amendments that would remove the practical restrictions that currently impede the use of such works.”

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Gov 2.0: Final report published