Patricia and Tony Barry
Part 1

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Introduction

We ask that the Copyright Law Review Committee clarify a number of aspects relating to creation, use and re-use of information concerning the formation of innovation and the advancement of knowledge, covering global exchange of ideas, facts, process, etc. as digital materials over the Internet. This paper results from discussion within our extended family worldwide for various businesses, commercial and private family interests; from input and discussion with colleagues in VET (Vocational Education & Training) and with friends and family in Higher Education at Universities across the world. We believe that most of the aspects also apply to other professionals and their application to effective use for the public interest. A principle is provided for examination by CLRC:

The Barry Principle of Intellectual Property

"Global Distribution as provided by the Internet has radically changed the concepts of Intellectual Property. Organisations (such as government agencies, and employers) will need to change their activities to concentrate on their external exchange roles. The concept of 'copyright' ownership in materials will progressively become irrelevant as communities assert their rights as creators and owners of ideas and processes." All Rights Reserved © Barry Family [8]

Summary

The Copyright Act (1968) incorporating the digital agenda and moral rights amendments provides a new, effective, commencement point for management of information and knowledge in society when progressively more material will be available via electronic means such as internet, communications and interactive transmission technologies.

This paper raises for discussion the concept that commercial interests have biased the principles as delineated by the Copyright Act. Firstly, some aspects seem to differ from WIPO treaties and Intellectual Property in other Nations. An example is that the Act is biased to word based literary materials of copyright owners. Little mention is made of creator or author interactive roles. Secondly, the rights of the client (reader, listener, inter-actor, student) are generally not described. Also the responsibilities of owners in meeting the criteria for providing access to material are not sufficiently delineated.

In summary, the aspects that are raised for clarification include:

Client rights and the public interest in the generation of innovation and knowledge.
The concept of fair payment on an ongoing basis, particularly for the public and for employees who may contribute to re-use and adaptation. This includes the rights of the public, government clients, employees and contractors; and the rights and responsibilities that may arise from new expressions that were not envisaged when the materials were originally created.
The concepts of technological change and the division of Intellectual property into increasing smaller and interactive components. The use of client tailored delivery is being progressively introduced, where the materials and presentation will differ in substantial ways between clients.

Copyright Owners Activities

In evaluating the aspects later in the paper it is considered that many of the issues might be resolved by implementing some simple ideas in more detail. The current Copyright Act states some principles, however much of the implementation is left to interpretation. This leaves creators and clients without sufficient guidelines. These ideas can be assembled to delineate the responsibilities of copyright owners particularly where these are large organisations such as international publishers and government agencies.

Summary Recommendations

When reviewing intellectual property policies, agencies should:

Make clear in writing what aspects of intellectual property are intended to be managed via deemed employer or government rights. This needs to cover the circumstances under which the agency will assume the costs of both publishing, creating innovation and protecting intellectual property.
Define inventor, creator and author rights including rights of revision and adaptation, reproduction, display, and ownership.
Define how creator, author and client can contribute to the development and delivery of inter-active materials. This needs to expand on rules such as privacy and security.
Spell out the role and rights of professional staff in the creative / technical process for works and for the design and development of deliverables. Also, identify when and how the agency can use intellectual property generated by professional staff.
Identify and explain how professional staff may use intellectual property and derivatives or adaptations under their own names, or as publishers.
Clarify how the inventor or author can use the agency's trademarks (e.g., name and logos) when commercializing a work. (eg certification of quality)
Identify and explain the client's rights or licenses that are expected for the purchasing, delivery and usage of works.
Identify methods to be used to deliver materials to meet the exceptions such as disability, education, research, and criticism: particularly covering the increasing requirement for delivery to remote communities.
Explain how professionals will be compensated for the development and preparation of e-Business deliverables (including distribution to remote communities and self-learning by the public) and how the parties will share in any royalties generated. This should include coverage of new usage and expressions using new delivery mechanisms that arise after the first publication of works.
Identify who will administer the agency's intellectual property policies.
Identify a forward path for new facilities for knowledge management and community based information professional exchanges.

Explanation - The Barry Principle of Intellectual Property

"Global Distribution as provided by the Internet has radically changed the concepts of Intellectual Property. Organisations (such as government agencies, and employers) will need to change their activities to concentrate on their external exchange roles. The concept of 'copyright' ownership in materials will progressively become irrelevant as communities assert their rights as creators and owners of ideas and processes. All Rights Reserved © Barry Family [8]

Reasons why copyright may become irrelevant

Much current material available on the Internet is still in text or book formats with large volumes of static information. This static format also applies to music and films. The Copyright Act relates very well to static materials. These principles have also been applied effectively where large numbers of contributors are involved such as in journals, newspapers and films.

However, the major feature of the Internet is that delivery is immediately interactive and depends on the client. The client actions determine the material delivery and are the intellectual property of the client. Various forecasts (such as e-Business) predict that such inter-active interchange will replace the static formats by several orders of magnitude.
Deliveries over the Internet by communications mechanisms and by interactive broadcast are developing into inter-active elements that are dependent on client criteria. This includes Client Relationship Management (CRM). Examples are:

The delivery of information by SMS over WAP phones

The delivery of inter-active Internet games or video presentations that depend on the exact criteria for a group of clients.
Another aspect is that Clients will progressively wish to ensure privacy and to limit facilities via encryption and permission management. This represents facilities such as Net Nanny Internet and email vetting, as P3P (Platform for Privacy Preferences) see W3C (http://www.w3.org/P3P/) and as security certificates that are delivered by products such as Windows XP and by other e-Business systems. The ownership of information in databases is already developing towards clients
More exceptions to copyright, eg. education and research exceptions will need to be changed to allow distributed learning. The fair use exemptions for education use and for research use typically only apply to use for private or non-commercial purposes. Payment of fees to other publishers and to other government agencies may be determined as not following guidelines for fair use.
Student's rights and public rights will be established by providing material by both Government Agency and by commercial organisations with specific licenses allowing re-use and adaptation. This aspect will grow.
Government Agencies will have increasing difficulty in proving originality for the contents of administrative arrangements and learning objects. They will also have difficulty in proving that material has not been previously published. Eg MIT has announced that they will progressively provide all course material as free to use teaching materials. This includes describing best practice business methods.
The implication is that existing copyright owners will progressively not meet the originality criteria under the Copyright Act (1968) s 176 for new materials that include client pre-existing or even new owned components and are inter-active.

Examples of Employment Situations that needs Clarification in regards to Innovation in Technology.

It is often proposed that globalization will mean that a person has several jobs during their lifetime. An example might be:

A person was born in Canada and completed primary education, and then moved to USA for secondary education. The person gained science and teacher degree qualifications in France, and then teaches science in Germany for 6 years. The person then carries out biotechnology research for an International Pharmaceutical company for 5 years. The person then relocates to Australia on marriage, registers as a teacher and is employed at 3 schools for a short period. The person takes 5 years leave for raising 2 children. However, the person during this time publishes several research papers on the Internet using specialist Silicon Graphics and biotechnology proprietary software. The person also gains distance education post-graduate qualifications in IT and Multimedia from Israel and UK. The person then re-starts a career as a secondary science teacher specializing in advanced on-line distance learning delivery. The person is employed part-time simultaneously at a state school, at a private school and at a University. The work includes delivery of standard curriculum lessons as a relief supply teacher, and development of new learner based self-tuition material. Some of the content explains bio-technical products; other parts include safety and scientific explanations.

The main question that needs clarification is what can be published by the person for use in various environments - viz; for use by teachers in schools and universities in other states, and what rights need negotiating, or for new use by health professionals in hospitals. The secondary question is what rights apply to a member of the public who purchases an electronic book, attends a course or is provided with a safety sheet, eg providing explanations to friends and family.

Another example might be - A Solicitor (professional licensing specialist and member of LESI ANZ) is employed under contact by a government agency to advise on commercialization of Intellectual Property. The specialist is then asked to be a member of an International IP advisory panel in Europe and also is asked to provide a key-note speech to a copyright conference in USA.

The question is - how does the Copyright Act explain the differentiation between prior knowledge, between confidential matters of the government agency and between interchanging advice to the public and professionals about the legal issues discovered as part of the government contract? This example can also apply to architects for building design, to doctors, engineers, etc.

A third example is a maintenance engineer employed on contract to maintain a machine. The engineer visits the client and finds an issue during maintenance. The engineer phones the original machine supplier. The engineer is then provided with new repair manual updates for the machine to his WAP/ SMS phone. The updates are specific to private information about the machine, the client and the engineer. The question is can the engineer keep the updates - and how does he transfer them to the employer?

Consequently, the issue appears to be - can the Copyright Act be expanded to clarify the differences and principles involved - or does the current clause "reasonable in the circumstances" have to remain as the defining criterion.

Additional Suggestions

The following additional suggestions are provided to CLRC so that they may establish clarification for Intellectual Property Rights and for Copyright for individuals and community groups including professional organisations.

It should be noted that the reminder of this paper provides comments to CLRC for their evaluation. The timescale and resources available to produce the comments has not allowed adequate analysis and the determination of priorities and confirmation of scope for the suggestions below, and for comments later in the paper.

A unifying statement should be provided into Australian Law that explains the inter-relations between all forms of Intellectual Property. This should include explanation of aspects for materials that are common or public property and aspects where restrictions apply in order to reward Creators and publishers for their innovation activities. This should also clarify aspects that are covered by international treaties and are not implemented in Australian Law.
Guidelines should be provided that clarify the responsibilities of publishers including government agencies and companies for the promotion of innovation in the Australian economy and for global activities.
The rights and responsibilities for publishing materials should be clarified, as compared with the rights of creators. It is suggested that restrictions and obligations are defined for setting limits on activities of the crown and of employers. It is suggested that the current definition "associated with employment" should be clarified.
It is suggested that default criteria should be defined that allocates both income and costs for ongoing continuing development and presentation of materials to creators and to publishers.
Another condition should be that the Agency (government or business) be required to publish within a reasonable timeframe of original material development. If this is not achieved then the copyright and intellectual property rights should be released either to the public or back to the creator. - The conditions (If innovation does not take place within a reasonable time) should be similar to the conditions for library copying if authors cannot be found for granting usage permissions. The danger that copyright is used to prevent publishing should be eliminated, as the overriding aim is controlled use for innovation for public benefit.
CLRC should determine the view of commercial publishers about government agencies making copies and electronic expressions of material that are in the public or IP free environments, and of government transfer between administrative and commercial activities?
CLRC should also determine the views of other community organisations. There is probably a larger range of organisations that may be involved, viz: churches, charities, retirees, pensioners, unemployed, business organisations that are not professionals such as rotary, zonta, alumni and trade groups etc.