# tianjara.net | Andrew Harvey's Blog

### Entries tagged "law".

12th November 2010

I've taken some time to look at the NearMap licenses (Community License, Free Commercial License) more closely. Here is some of my commentary of them. I'll use the terminology used in the licences so please excuse me for using their language and jargon. When I say free I mean free as in "free software", "free culture" and "free as in freedom". Also this is just my interpretation from reading them, I am not a lawyer. Hopefully I've interpreted them as NearMap intended.

## Derived Works

"ShareAlike is an imperfect solution to copyright restrictions, as it imposes one restriction of its own: a restriction against imposing any further restrictions. It's an attempt to use copyright against itself. As long as we live in a world wherein everything is copyrighted by default, I will use ShareAlike or some other Copyleft equivalent to attempt to maintain a "copyright-free zone" around my works. In a better world, there would be no automatic copyright and thus no need for me to use any license at all. Should that Utopia come about, I will remove all licenses from all my work. Meanwhile I attempt to limit other peoples' freedom to limit other peoples' freedom." -- http://questioncopyright.org/CC-branding-confusion

Another important observation that I previously overlooked is the fact that,

"You will own all Derived Works that you create. However, you may only distribute Derived Works to others on the terms of a Creative Commons Attribution Share Alike (CC-BY-SA) licence (and you may use any version of that licence you wish, whether localised for a particular country or not). For example, you may Use the Licensed PhotoMaps or Modified PhotoMaps to obtain information which you can then use, under the Creative Commons Attribution Share Alike (CC-BY-SA) licence, to populate or update community street mapping projects." -- http://www.nearmap.com/products/community-licence#clause5

Previously I had thought that any derived works that came from NearMap PhotoMaps used in OpenStreetMap needed to be attributed to NearMap. I guess I just incorrectly thought that all the information was CC BY-SA licensed by NearMap, but that is not the case. These works actually need to be attributed to the user who observed that information and turned it into a work by, for example, adding it into the OSM database. The works do not need to be attributed in any way to NearMap.1 This also means that any copyright that arises from any creativity in deciding what to trace, and any copyright that arises from the tracing being a derivative work can be treated as CC BY-SA licensed by that person or user. That person is the copyright holder but they are only allowed to distribute the work under a CC BY-SA license. This is a good thing! I'm glad that NearMap have not chosen to change the wording to make it compatible with the public-domain-like OpenStreetMap contributor terms, as (unless of course one has some other license from NearMap) it guarantees that this information remains free2.

The discussion and use of Yahoo imagery as a source of tracing for OpenStreetMap was before my time, but from http://wiki.openstreetmap.org/wiki/Yahoo it seems that strong legal foundations are lacking. In this respect I feel much safer tracing from NearMap. I know that my contributions can be licensed under the free CC BY-SA license and nothing can be done to unfree these works. Whereas the legalities of Yahoo imagery is, at least from my reading, very questionable and potentially a huge problem in the future.

## Modified Works

Another reason I took a closer look at the licenses was to make sure that the works I posted earlier which were modified PhotoMaps complied with all licensing requirements, both the NearMap and OpenStreetMap requirements. I have come to the conclusion that unfortunately I am most likely unable to satisfy both the Mapnik share-alike requirement and the NearMap share-alike requirement in coexistence.

The NearMap "free community licence" gives me the "right to use, copy, modify and distribute our PhotoMaps". The distribution to others clause says that I must give NearMap attribution for the distribution of any original or modified PhotoMaps, however the license also says "You may sublicense your rights to the Licensed PhotoMaps, Modified PhotoMaps or APIs to others on the same terms as this licence or our free commercial licence." I interpret this as if I modify a PhotoMap I need release it under the "NearMap free community license", that is it is share-alike.

On the other hand though, I also used the default OpenStreetMap Mapnik-style map images. My understanding is that like the data used to create these maps, the actual map images are copyrighted by all the OpenStreetMap contributors and released under the CC BY-SA license. The share-alike means that any derivative works (like overlaying NearMap terrain maps) must the released under a CC BY-SA compatible license, so you cannot impose non-commercial or non-government on it. However although the NearMap free community licence plus the NearMap free commercial license almost allow anyone to use or modify the work they don't meet CC BY-SA because they exclude government and exclude commercial use made in a "competing manner" and use that is "material to their business". This leaves me to believe that I cannot legally distribute any work that is a mash-up of OSM data/maps and NearMap PhotoMaps. Unless of course that it is only the default Mapnik tiles that are CC BY-SA, and that anyone can copyright map images made from OSM data. Because NearMap uses OSM data to create Mapnik tiles using their own map style. I assume then that it is only the OSM data that is CC BY-SA and someone is free to make a non-free map using their own style from this data. Then they would own the copyright to that map and hence you would be free to combine this with NearMap's PhotoMaps and release the product under their free community license. This could also explain why NearMap can overlay their transparent tiles based on OSM data over their non CC BY-SA imagery.

It is a shame, but I can totally understand NearMap restricting use of their PhotoMaps in a specific field of endeavor, namely the government. The government is central to their current revenue stream, without it they probably could not produce the volume of work they currently do under their almost free, community license. It is almost CC BY-SA, except they exclude three fields of endeavor, "Competing Manner", "Material to their business" and "Government Entities that use our PhotoMaps for their own governmental purposes". The first two exclusions make the PhotoMaps near CC BY-NC-SA, but the last clause means they cannot be compatible with any of the Creative Commons licenses.

Let me use the example case of distribution of original NearMap PhotoMaps. For instance say I download a bunch of imagery tiles and distribute them through BitTorrent, the key question here is do I need to enforce that this distribution is to non-government entities. If I am only allowed to distribute it to non-government, I cannot do that, so the freedoms that the license grants are not as broad as I thought. If on the other hand if I can distribute the works to government entities along with the free community license as a LICENSE file, but leave the responsibility and liability on the government to not use the works I make available, then this would be much better. Hopefully the latter is the case. This was almost touched on here, but which party the liability lies on was not mentioned.

## Termination

This is why I hate reading all this legal jargon, every word is important but has different interpretations. Code on the other hand has just one interpretation, and that is defined in the compiler... Anyway, at first I thought this termination clause meant NearMap could terminate the license grant at any time, however I missed the words "if the other party breaches this licence". I view this to mean that NearMap cannot terminate the license grant unless you breach the license. But even if such a case arose, derived information is safe. So NearMap can do nothing to prevent the CC BY-SA distribution of derived information. Although it appears all the other parts of the license grant can be subject to this clause.

1 However I still think that one should attribute NearMap regardless. In the OSM case, attribution using the source tag should be done for other reasons as well; like so people know where the data came from, hinting some clues of the quality of the data.

18th February 2010

Following up from my previous post, I have made improvements to the code, and I now have all the NPLAN data too. There are also some data files so you don't need to run the scraper and parser which hopefully this makes the data more usable and to a wider range of people. Now that I have the NPLAN data you can compare schools in terms of their (I assume the numbers are averages) test results. I was going to put in the repository some tables mashing together some of the data in the database, but I've had to research about a silly NSW law first. I'm not exactly sure what I can publish and what the implication of that would be (so best make your own league tables and possibly publish them if you want). The NSW law says,

A person must not, in a newspaper or other document that is publicly available in this State: (a) publish any ranking or other comparison of particular schools according to school results, or, (b) identify a school as being in a percentile of less than 90 per cent in relation to school results.

The folks at the Sydney Morning Herald seem to think that "Published online the same tables infringe no law; printed on these pages they are illegal." This is not what I interpret the law as. Publishing online means that the document is available for access from NSW. However I am confident I can get around this by not hosting anything myself and not hosting in Australia. For this I rely on the great services provided by wordpress.com (Automattic, Inc.) and/or github.com (GitHub, Inc.). Hopefully these US companies wouldn't cave into any threats from the Australian government.

This section of the law carries a maximum of 50 penalty units. Which is currently a fine of 5500, that is a large enough sum for me to take extra care. This is why I'm still not sure if I should put such lists like schools ordered by certain NPLAN results in the github repository. By the way, this censorship and damaging law raises the same questions and problems (problems for those that wish to avoid criminal or civil charges) about legal jurisdiction over the internet, the classic example is the "yahoo! nazi paraphernalia" debacle. Footnote: This SQL query should give you an ordered list of schools based on the 2009 year 9 NPLAN results (but I guess if you can load the database dump you can probably write your own queries...). SELECT s.name, n.score, sub.state FROM nplan n, school s, (SELECT distinct pcode, state FROM suburb) sub WHERE n.school = s.myschool_url AND s.postcode = sub.pcode AND n.year = 2009 AND n.grade = 9 AND n.area = 'numeracy' ORDER BY n.score DESC; Tags: education, law. 8th February 2010 I post these here for the purpose of future reference and use. ...for purpose of parody or satire ...for the purpose of, or is associated with, the reporting of news by means of a communication... ...for the purposes ... of a report of a judicial proceeding. They are "Acts not constituting infringements of copyright in works". So I'm just reminding myself of these rights so that any time I wish to use material covered by these, I can just grab the text and link from here and note it next to the copy. Of course this is not really relevant here because this blog is hosted by a US company, but it would be help if I were to one day decide to self host in Australia. Tags: law. 22nd January 2010 So I've started reading a book about networks, and to complement this I've been taking a closer look at my network traffic in Wireshark (really great tool, by the way.). So I pick an ftp site that I know, ftp://download.nvidia.com/ and see what happens in Wireshark when I visit it in Firefox. At the FTP application level this is what happens, ftpsite to me: 220 spftp/1.0.0000 Server [69.31.121.43]\r\n me to ftpsite: USER anonymous\r\n ftpsite to me: 331 Password required for USER.\r\n me to ftpsite: PASS mozilla@example.com\r\n ftpsite to me: 230- \r\n 230- ---------------------------------------------------------------------------\r\n 230- WARNING: This is a restricted access system. If you do not have explicit\r\n 230- permission to access this system, please disconnect immediately!\r\n 230 ----------------------------------------------------------------------------\r\n  But Firefox does not disconnect. So I did some more research and I found no references to "anonymous" users in either RFC 959 (FTP) or RFC 3659 (extensions to FTP). (Though there are references in latter RFCs, see RFC 2228). The thing I find disconcerting is that I don't think I have "explicit permission" to access this system. I (or rather Firefox) just guessed a username and password and they happened to let me in (what if I guessed a different username and password that wasn't anonymous and it let me in?). If the RFC specified that a user of anonymous requires no password, or any password, then I would assume that the FTP server is granting me permission, but I assume rather people just started using anonymous as the user and it caught on... The real problem here is that there are laws which govern such areas, and it doesn't help that that I don't understand what PART 6 - COMPUTER OFFENCES of the CRIMES ACT 1900 (NSW) is saying. Tags: computing, law. 4th January 2010 What happens when you mix a service like AustLii with version control system like Git with a wiki like editing system, and deliver it to the people through the web? Well I haven't tried, but it sounds like a good idea. You get a service that, • allows anyone to propose changes to laws (and work on branches) or draft and new laws, and • keeps track of the law and when it was changed (and which politicians/parties introduced those changes, who voted for them, etc...). Tags: law, politics. 19th September 2009 I try my best to be accurate, but I would not be surprised if I have made some errors here. Also this post is still a work in progress and I'll be making changes. # Week 1 & 2 ## Historical Origins of The Australian Legal System • Common Law Legal System • Australia has a "Common Law Legal System". The main feature of this that separates it from other Western legal systems is the degree that it relies on precedent (through the doctrine of precedent). Under this system laws either come from Parliament, called legislation, or Courts, called case law or common law. • I've come to realise that its not enough to just follow just the legislation as cases can provide extra details and insights into the legality of a matter. Furthermore you can rely on these precedents in court (although it seems they can go back on their decisions and make new precedents to override old ones, as seen with [2009] HCA 14.). •  Institution Laws People parliament statute law members of parliament courts common law judges (most courts)/magistrates (in the local court) • Barristers are the ones in court arguing a case, eg. in litigation. Solicitors are the people you usually go to see first. They can arrange a barrister, draft wills, give legal advice, etc. • Norman Period • Australian Law stems from English law. English Law started out in the Norman Period. • Feudalism • It is a hierarchy where the king is at the top. The king own all the land and leases it out. This goes down a few levels where at the bottom you have people who are allowed to use the land if they share their crops and provide military service if necessary. • Trials by Ordeal and Trials by Battle. • Relied on "divine intervention" to determine the verdict. • The Writ System (court orders...) • Lead to Equity. • Equity -> eg. forced to comply with the contract. • Constitutionalism -> Can be thought of as 'guidelines for government' • Magna Carta • Just an old document. But an important clause was that no one could be detained without being charged, and right to trial. • allowing appeal against unlawful imprisonment. • Includes, • A right that a person can seek relief from the unlawful detention of him or herself, or of another person. • Westminster (Parliament) • Monarchy <-> Republic • House of Lords/House of Commons (Upper House/Lower House) • Parliament • Legislative Arm -> Creation of laws • Executive Arm -> Administration of laws • The Bill of Rights 1689 • Non-Partisan - Not affiliated with a political party • Security of Tenure of Judges - Protects from external pressure. ie. contractual right not to be sacked without just cause. • Trial by Jury • Originally (ages ago in England) the jury were locals, now they are impartial (and so are the judges) which means that they have no prior knowledge of the case. • Saxton's introduced compensation into the law # Week 3 ## Rule of Law The rule of law had origins in the Magna Carta but its not what we now consider "the rule of law". The key theme of the Rule of Law is everyone is subject to the law. Eight Ways to Make Law Fail (based on the allegory concerning Rex): • Failure to publicise law • Obscure law • Retroactive law • Contradictions in the law • Unable to comply with the law • Unstable daily amendments to the law • Differences between rules/laws as announced and their administration However at least some of these (if not all) are not law themselves. They are not in the constitution so there is nothing stopping a government from creating say retrospective law. ## Law, Land & Society Before 1788 Terra Nullius is a term used to describe be land belonging to no one. The British belied Australia to be Terra Nullius as they did not see the land as having an established legal system. # Week 4 ## Types of Legal Systems • Common Law • Adversarial System (this is the type of procedure practised in common law courts) • "relies on the skill of each advocate representing his or her party's positions and involves an impartial person, usually a jury, trying to determine the truth of the case." (Wikipedia.org, Adversarial System) • Mostly done orally in the court room. • Civil Law • "The Code" • No precedence (so there is no case law) • Inquisitive System (this is the type of procedure practised in civil law courts) • "has a judge (or a group of judges who work together) whose task is to investigate the case" (Wikipedia.org, Inquisitive System) • Mostly done through written submissions to the judge. • Judge actively steers routes of evidence investigation (compared with a common law system where the lawyers do this). • No jury (mostly). • Communist Law • Religious Law • Customary Law • eg. Aboriginal customary law • Never written down These legal systems "supposedly" all have the same aim. ## Separation of Powers Kept separate to balance power of any one: 1. Legislative Arm (Parliament) • Amends/Creates Laws 2. Executive Arm • Administrate Laws/Initiating Laws/Enforce laws • Government Departments, Governor General, Police... 3. Judicial Arm • Courts/Judges (High Court...) • Interpret laws Jurisdiction is the power of a court to exercise judgement. Three different types of jurisdiction, • State vs. Federal • Original vs. Appeal • Civil vs. Criminal # Week 5 ## Federation and Laws Made By Parliament • Australia Act 1986 (ie. federation) (according to the constitution) stipulates the number of senators and the distribution among the states. • It was not until the UK passed their statues did Australia become legally a federation. • Senate (Upper House) -> Scrutinise Bills • House of Reps (Lower House) -> Draft/Introduce Bills To get voted into the senate you need 1/6 + 1 of the votes. Once you reach this quota extra votes that would be used on you are distributed to the voters other preferences. Senators are only up for election every two elections (usually). • Senate -> Representative of the State • Reps -> Representative of the Country (Although its a little more detailed as they are really representative of the electorate. Because of this you can have a party with 49% of the votes but still get no members into the house of reps.) We generally get lots of independents in the senate because people rarely vote 1. Labor 2. Liberal. If someone supports party A where B is A's greatest competitor, most people will usually not vote for their opposition as 2, so they sometimes put some independents (remember once the quote is met, surplus votes are redistributed (either as the voter order their preferences, or if not chosen by the voter, how the party chooses)). • With regards to politicians voting on bills, a Conscious Vote is crossing the partly line (or whatever the party decided on how they would vote) vs. a Party Vote where you (the politician) vote as your party does regardless on what you think. Preferential Voting ensures a strong 2 party system. Passing a Law: (Repeated for each house) • 1st Reading • 2nd Reading - Purpose of the bill (Sometimes used by lawyers to interpret the law). • 3rd Reading The Australian Constitution stipulates which matters the Commonwealth have power to make laws over and which the states have power. # Week 6 ## Laws Made By Courts & Precedent An indictable offence is one where you can go to prison over it. A case begins in the local court with committal proceedings, except for the more serious cases which begin in the supreme court. But there are some exceptions, for example certain constitutional cases will go straight to the High Court. The different courts are listed http://www.austlii.edu.au/databases.html, although the list is not complete as you also have local courts in most states. Local court -> District Court -> Supreme Court -> High Court. [caption id="attachment_756" align="aligncenter" width="450" caption="Hierarchy of the Australian Courts"][/caption] • If you don't like the decision make by one court you can appeal to a higher one. • For a matter to be heard in court there must be "reasonable prospects of success". • Civil matters claiming over750 go straight to the supreme court.

In a criminal case beyond a reasonable doubt must be established, this is not the case in civil cases.

Because we have a common law legal system (adversarial), "the judge can only make a decision about what was herd in court and cannot make any other inquiries about the case"1.

"A judge will usually order that the costs of the successful party be paid by the unsuccessful party."1

• Ratio decidendi
• reason for judgement.
• meaning "the reason" or "the rationale for the decision."
• Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower jurisdiction—through the doctrine of precedent.
• Obiter dicta
• is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision.
• statements constituting obiter dicta are not binding (meaning cannot be used as argument for a precedent), although in some jurisdictions, they can be strongly persuasive.
• The High Court is the final court of appeal in Australia in matters of both State and Federal.
• Must rely on a precedent in a higher court (which implies that the precedents set by the high court are binding in all other courts).
• BUT the Full Court of the High Court is not bound by previous decisions made by the High Court, so the High Court can overrule itself.
• The Full Court of the High Court means all the judges (there are 7 and they are called justices) sit in and vote on the case, rather than just one judge per case.
• The full court of the Federal court means at least three judges sit in.
• Try mostly have an odd number of judges as when making a decision on a case, the majority prevails.
• If you don't like the precedents try to find differences that can distinguish the cases.
• If no precedent, you can look at obiter dicta, or you can look into other jurisdictions (these are not binding but can be persuasive).

# Week 7

## The Legal Profession

Barristers and Solicitors are distinct parties. They have different roles and have no relation. "Solicitors have more direct contact with the clients, whereas barristers often only become involved in a case once advocacy before a court is needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely instructed by clients directly (although this occurs frequently in tax matters). Instead, the client's solicitors will instruct a barrister on behalf of the client when appropriate." (Wikipedia.org, Barrister)

In Australia Barristers are always sole traders. The research for a case is done by the solicitor who gives a brief to the barrister before they appear in the court.

Attorneys are much the same as Solicitors. The term Attorney is used more commonly in the US.

# Week 9

• Negotiation
• Informal
• Voluntary
• Both parties meet privately and try to work out a resolution without needing to go to court.
• Can lead to a settlement.
• Private. Unlike adjudication which is public. Companies that don't want the media attention that may come from a court case, make take this option.
• Quick
• One negative for the public is that no precedent is set, so little people cannot rely on large corporations to set the precedents for them.
• Mediation
• Voluntary
• Mediator is present
• Outcome only accepted when both parties agree to it
• Individual may feel in control of the matter rather than their lawyer.
• Business relationships can be maintained
• Conciliation (only for some courts)
• Mandatory
• Mediator present, but cannot enforce/make a decision on the outcome
• Can be lengthy taking from months to years.
• Arbitration
• Tribunals
• Courts
• Legislation
• The government changes the law to make a certain dispute clear.

This is very much a scale. At the top the parties very much are in control of the outcome. Whereas at the bottom they don't have much control at all of the outcome (so long as the system is not corrupt). The top is informal, wheras the bottom is formal. At the top things are by agreement, whereas at the bottom things are much by imposition.

## Other Legal Institutions

• Tribunals are set up by laws.
• They are like courts but are less formal.
• Unlike courts the strict doctorine of precedent does not apply to tribunals.

The Administrative Decisions Tribunal (ADT) is one such tribunal (they are is the NSW jurisdiction). The Administrative Appeals Tribunal is another tribunal (federal jurisdiction). As per their website "The Administrative Appeals Tribunal (AAT) provides independent review of a wide range of administrative decisions made by the Australian government and some non-government bodies. The AAT aims to provide fair, impartial, high quality and prompt review with as little formality and technicality as possible. Both individuals and government agencies use the services of the AAT."

In most cases if you are unhappy with the tribunals decision you can appeal to a court, although there are conditions on this. For example as stated on the AAT's web site "If you disagree with the Tribunal's decision you may appeal to the Federal Court on a point of law. This means that the Court can only hear an appeal from the Tribunal decision if you or your adviser believe the Tribunal made a mistake in law in deciding your case. Because there are many rules about Federal Court appeals you may wish to get legal assistance."

# Week 10

## Contracts and Torts

### Contracts

• A contract is an agreement that is enforceable through the courts.
• Contracts can be written or verbal, but written contracts are easier to prove.
• For a contract to be valid there must be, (i.e. otherwise the contract is void, meaning its not legally binding)
• An intention by the parties to be legally bound by their promises,
• agreement by the parties on the terms of the contract,
• consideration from both sides.
• If the parties do not intend for a contract to be legally binding and there is agreement on that then the courts will honour this. (See Rose and Frank v Crompton [1923] 2 KB 261).
• When not expressly stated the courts will presume that, (but this can be rebutted, see Wakeling v Ripley (1951) 51 SR (NSW) 183)
• social, family or domestic agreements are not intended to be legally binding, and
• commercial agreements are intended to be legally binding.

### Agreement of a Contract

• As mentioned for a contract to be valid it must have agreement by the parties.
• Offer and Acceptance
• An offer is made by one party, and if accepted by the other, then the contract has agreement. (I think that means, if you make an offer they say okay, you cannot go back and not be bound by the contract.)
• An "invitation to treat" is not an offer.
• Lapse of an offer
• Acceptance
• Silence is not acceptance (Felthouse v Bindley (1862) 11 CB (NS) 869) (but an act can be)
• Acceptance must be in response to an offer for the contract to be valid (R v Clarke (1927) 40 CLR 227).

There is a bunch of related conditions regarding selling of goods. See the Trade Practices Act.

### Torts

• A tort is a civil wrong.
• Breach of Contract is a tort.
• Don't need to have a contract to commit a tort. eg. Tort of Negligence.

# Week 11

## Criminal Law

(work in progress)

Criminal Law is meant to cover matters concerning the state.

• There are sanctions for failing to abide by the law. But there is no capital punishment in Australia.

Reasons for sanctions,

• Retribution - "they ought to suffer"
• Deterrent
• Incapacitation - protect society by locking the criminal up in jail.
• Rehabilitation - try to change them so they won't re-offend.

Need,

1. proof of crime (actus reus)
2. criminal intent (mens rea) (although some "strict liability" crimes don't need this)

Two types of offences,

1. Summary offence -> Decided by a magistrate. No jury. Max 2 years imprisonment.
2. Indictable offence -> most cases have a jury.
• Prosecution need to prove defendant is guilty beyond a reasonable doubt.
• A hung jury is when the jury cannot come to a unanimous (although now they will accept one who votes different to everyone else) decision.
• A persons previous criminal history can only be made known at the sentencing (after a jury has decided if they are guilty or not).
• The jury decides the defendants guilt/innocence, the judge decides the sentencing.

Sentencing,

• Could be prison.
• Could be periodic or home detention.
• Could be community service.
• Could be a fine.
• Could be discharged on a good behaviour bond.

# References

[1] http://www.fedcourt.gov.au/videos/text_version/how_a_case_travels.html

Tags: genl2021, law.
12th September 2009

I've run into a little legal problem. By a problem I mean that if I were convicted for this I could face "a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both." Apparently one penalty unit is $110. So that means in the worst case a$60, 500 fine and 5 years imprisonment.

What's all this over? Well I thought I better check up on the Copyright Act 1968 (which I will refer to as The Act) and it is an indictable (meaning you can be sent to jail if found guilty) offence to do the following. (SECT 132AL, The Act)

(1)  A person commits an offence if: (a)  the person makes a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and (b)  copyright subsists in the work or other subject‑matter at the time of the making of the device. (2)  A person commits an offence if: (a)  the person possesses a device, intending it to be used for making an infringing copy of a work or other subject‑matter; and (b)  copyright subsists in the work or other subject‑matter at the time of the possession. .... (11)  In a prosecution for an offence against this section, it is not necessary to prove which particular work or other subject‑matter is intended to be, or will be, copied using the device.

And herein lies the problem. As a regular citizen this is too ambiguous, because people have different interpretations of what a "device" is. Case law can help here as it can give concrete examples of what is illegal and what is not, but someone always is going to be the first one to have to step up to the court to make the case law. Statute law should be clear enough on its own to be understood by the general public.

The term "infringing copy" could also be interpreted different ways, but the law actually explains what it means here (unlike for device which is to be interpreted as "includes a plate" where a "plate includes a stereotype, stone, block, mould, matrix, transfer, negative or other similar appliance." (The Act)).

Back to the actual problem that I'm referring to, I read the "Time-shifting" fact sheet from the Attorney-General's Department, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~Copyright+Fact+Sheets+-+Time-shifting.pdf/file/Copyright+Fact+Sheets+-+Time-shifting.pdf (wow what an ugly URL!). It says that it is now legal to record a television or radio broadcast to watch or listen to at a more convenient time. However broadcast does not cover streaming of content online. As such ABC's iView and friends fall outside this scope. When you stream content from ABC's iView using an Adobe Flash player I'm not sure if any content is actually written to disk or not but it is definitely saved on various memories, however this "copy" would fall under SECT 111B of The Act and is legal. What would probably not fall under SECT 111B is there are tools, or what a court may call "devices", that are "intending it to be used for making an infringing copy of a work" (SECT 132AL, The Act). You can use these tools to store a permanent copy of material that ABC's transmits to you. My problem is I wrote a script which "helps" users make infringing copies of material published by SBS. Its not the part that actually copies the material (flvstreamer does that) but I can just imagine some lawyer convincing a judge and jury that they should send me to prison. Its way too confusing because you don't even need these scripts you just need your OS. tcpdump can be used to capture the traffic just like these tools do. Then there is the word "intending" which is open to interpretation to much. The computer is a copying machine, its not going to stop and check if the copy will be infringing or not. Sorry this has turned into a bit of a rant, but The Act really annoys me. Maybe its because I interpret it different to the people who wrote it, or the people who will use it to send me to prison or give me huge fines. Then there is the whole other thing of who is held liable. I wrote about the script on wordpress.com, and linked to its location on pastebin.com. Will they come after Automattic (the owner of wordpress.com) or me or the owners of pastebin.cem? But I'm (or maybe its not really me at all but Automattic) publishing all this in the US (I presume wordpress.com is hosted on servers in the US), so that makes all this Australian Copyright Act garbage useless. Oh and the other thing, under the current act, if you visit a web site most browsers will cache that to disk (I wouldn't call that a temporary copy "as part of a technical process of use", but I would call the copying of the data for the HTML document to registers, the processor cache and RAM a temporary copy, but this is not defined in The Act.). Are then web browsers a "device, intending it to be used for making an infringing copy of a work" because they ask for content from a web server, get given it and then save it to disk? (but it's no defence to say heaps of other people are breaking the law and you have singled me out so you can't charge me) Does it matter that the web server can send a "Cache-Control: no-cache" response header, if they don't does that mean that we are allowed to cache all this to disk? But that HTTP header and even the whole HTTP spec is just a W3C recommendation. This is just a little bit on my reasons why I have no respect at all for the Copyright Act. I don't want to have to worry about any of this legal stuff, but I must because if I don't the government can send me to prison or impose huge fines and I don't want to take a risk there. Oh and in my defence, the script that I linked to in this post, I would not classify as "device, intending it to be used for making an infringing copy of a work" if anything it would be flvstreamer, but then you cannot single those out. If publishing that script I linked to, or flvstreamer is illegal in this country then publishing an HTTP web browser, tcpdump, or an OS that interfaces with a network must also be devices that are intending it to be used for making an infringing copy of a work. Also something I've been wondering for ages, how can anyone ever be convicted of downloading copyright infringement mealy by downloading it over the internet? One cannot know if such material is protected by copyright (they don't even know what the data is until they have downloaded it), and one cannot know if the entity they are receiving the data from is the copyright holder who permits this use. A lawyer may come along and say that this is all true, but I wouldn't want to bet my life on the fact that the court will also agree (given the track record of the courts, see Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187). Anyway back to studying for my COMP courses. Tags: copyright, law. 8th September 2009 Say I know of a law (could be any law but I'll try to choose a recent one as the records don't go back all that far) and say its the FAIR WORK ACT 2009. I found this through AustLii, now I want to find the bill that this act was created from, as well as any bills that lead to amendments to this act. This information cannot be found in the Act itself. I could do a search on AustLii for the Act Name minus the year and the word Act, and add the word Bill, but because I don't know enough about parliamentary procedure I don't know if this is the rule and all acts must be named the same as the bill, or this is just something commonly done. Ideally there should be some references in the database that link bills to an act (if it has been passed). Now that I have located a Bill I can read the bill on AustLii, but I've heard that there are these things called "First Reading", "Second Reading" and so on that happen in parliament that give the reasons for the introduction of a bill. I want to find that information. So I head over to openaustralia.org, Because I'm not too familiar with parliamentary practice I don't know where these first and second readings fit in. So I do a search for "FAIR WORK BILL 2009" Second Reading". [caption id="attachment_746" align="aligncenter" width="450" caption="From the search results I manually look down the list to find the one that appears to be the second reading."][/caption] I have to manually look down the list for one that appears to be the second reading. Sure there may be technical reasons for this which may explain this but at first glance it seems that debates that are the Second Reading of a Bill appear to end with ": Second Reading". Perhaps an advanced search could use this to determine if a debate is a Second Reading of a Bill or not. Looking at the XML data provided by OpenAustralia for that day you can see that the debate has a minor-heading of "Second Reading", so sorting and searching by this attribute shouldn't be too hard. Admittedly I don't know enough about the way parliament works. Are these second readings mandatory or just customary? Tags: law, politics. 13th August 2009 I was going to answer all their questions, but after reading realised I haven't the time. So instead I'll repost it just because I can. Source: http://gov2.net.au/consultation/2009/07/23/towards-government-2-0-an-issues-paper-final/ ## Government 2.0 Issues Paper How you should use this Issues Paper We want to hear the arguments, information and stories that you have to tell us. The rest of this document is simply our way of helping you do that. It is not a template that you should feel obliged to follow, though we hope that this paper helps. There may be questions you wish to address that are not here, just as there may be questions we have raised you do not wish to address. Also, please note, our focus in this Issues Paper is on your making a written submission. You can find details about how to make a submission at Appendix 1. We also offer the option to make online submissions through our Consultation page at http://gov2.net.au/consultation. As you may be aware, there are other channels by which you can communicate with us. You can comment on our blog at http://gov2.net.au and members of both the Taskforce and its secretariat are attending various conferences and other activities where Government 2.0 will be discussed. You are welcome to attend. You can provide the Taskforce with feedback at any time, for instance through our blog, but we cannot promise to consider submissions on this paper which we receive after start of business Monday 24 August 2009. The Taskforce would like to thank those people, both from Australia and offshore, who contributed to this Issues Paper both by making comments on our blog and by making specific comments on this Issues Paper when it was issued in ‘Beta’ format a few days before finalisation. Our Job The Taskforce is charged with finding ways of accelerating the development of Government 2.0 to help government consult, and where possible actively collaborate with the community, to open up government and to maximise access to publicly funded information through the use of Web 2.0 techniques. We will do this with recommendations for government policy and also by funding projects which offer promise in accelerating the coming of Government 2.0. The Taskforce will be looking at the use of Web 2.0 both within government as well as in the government/public interface. The Terms of Reference of the Taskforce are at Appendix 2. Why Government 2.0? The aim of Government 2.0 is to make government information more accessible and useable, to make government more consultative, participatory and transparent, to build a culture of online innovation, and to promote collaboration across agencies in online and information initiatives. There are obvious benefits in moving in this direction to support, complement and strengthen existing engagement and consultation practices. Online engagement means citizens should be able to collaborate more readily with government and each other in developing and considering new policy ideas. It can give citizens greater insight into the policy making process and greater appreciation of the complexities of policy decisions. It makes possible an ongoing conversation amongst all who wish to participate in considering the effectiveness of existing government programs, laws and regulations and the scope for improvement. Government can use collaborative technologies to draw on the skills, knowledge and resources of the general community when developing policies or delivering services. Government agencies can receive feedback more rapidly, from more people at less cost. This in turn provides an opportunity for government to improve the way it delivers services to citizens. How will we achieve Government 2.0? Governments around the world and certainly our own governments have been relatively good at seizing many of the opportunities provided in the first incarnation of the internet, now often called Web 1.0, that is the use of the internet as a platform to distribute public material and solicit information from stakeholders by way of online ‘feedback forms’. Indeed in 2008 the internet became the most common way citizens last made contact with government . However a range of possibilities are emerging on the internet which have been dubbed Web 2.0. The revolutionary potential of Web 2.0 is apparent in websites like Google, Flickr, Facebook and Wikipedia. The central theme of Web 2.0 is moving away from point to point communications and towards many to many communication and collaboration. There is a buzz of Web 2.0 in the community and amongst enthusiasts who post to blogs and sites like Flickr and join online discussions. Governments across Australia have taken some interest in the applications of Web 2.0 to government. However compared with the speed of adoption of Web 2.0 tools and modes of operating in some quarters, progress in embracing Web 2.0 within government has been modest. A comment from our Beta consultation: This comes down to a fundamental view of what Government is for. If one is of the view that the purpose of Government is to shape society into some kind of ideal, where everyone is on the same page working to some kind of utopian goal, then Web2.0 has very little to offer. In that world view, the Government has already worked out what it’s going to do and the job of the citizen is to either help it get there (usually by means of constructive “submissions”, but only when “consulted”) or get out of the way and let the Government do its thing. If one is of the view that the role of the Government is to act as a kind of social lubricant to enable citizens to employ their own ideals in furtherance of their own goals, then that’s where Web2.0 is strong. Enabling that outcome requires the Government to be part of the conversation, so that it can see where obstacles are and apply its resources appropriately to smoothing the way for citizens without creating more problems than it solves. Government can be a remarkably blunt instrument, which needs to be wielded with care. I suspect that the slowness of Web2.0 adoption comes from the fact that those of us who support this initiative are in the latter mindset, while much of the Government and its accompanying bureaucracy are in the former mindset. Resolving this schism is, IMHO, one of the paramount challenges of Government 2.0. Mark Newton Key Questions On public sector information How can we build a culture within government which favours the disclosure of public sector information? What government information should be more freely available and what might be made of it? On digital engagement What are the major obstacles to fostering a culture of online engagement within government and how can they be tackled? How can government capture the imagination of citizens to encourage participation in policy development and collaboration between citizens and government? A comment from our Beta consultation: The primary obstacles that emerge in our research on this are very clear, they include: i) there is an inherent culture of risk aversion within government; ii) failing to integrate online engagement fully into the policy cycle means that people see little point in becoming engaged; iii) within government, engagement happens at too low a level; people want to see senior policy officials and ministers involved before they believe it has value; and iv) using the wrong kind of engagement tool; it’s not about fashion, it’s about choosing the right tool for the policy stage and audience. Andy Williamson Introduction A number of reviews and processes have pointed to the importance of greater dissemination and reuse of public sector information and greater online engagement with citizens/between governments/between governments and citizens. At the Australian Government level, for example, these include the Cutler Review into Innovation , and the Gershon Review into ICT use and management . Some State governments have also been making important strides. Most recently the Victorian Government has released its Report of the Economic Development and Infrastructure Committee on the Inquiry into Improving Access to Victorian Public Sector Information and Data, Parliamentary Paper No. 198 Session 2006-2009, June 2009. Proposed legislative change, including proposals for the establishment of an Office of the Information Commissioner and amendments to Freedom of Information legislation to impose a publication scheme on all agencies underpin an agenda of greater public access to government information. The proposed Office of the Information Commissioner will incorporate the existing Office of the Privacy Commissioner. Handling privacy well is important to generating the trust and confidence in the community necessary to optimise community engagement in Web 2.0 initiatives. Many government agencies are currently involved in aspects of information policy development. Many are also exploring the use of new tools and techniques to improve the way they work. The Taskforce seeks to build on this work and to accelerate this process of change to allow more open access to, and use of, the information created and/or funded by government. Equally important, the Taskforce will explore the issue of effective consultation, engagement and collaboration with citizens. This work will inform the framework for an Information Policy that can be applied across the Australian Government. In this paper we elaborate on issues relating to public sector information. We have covered these at greater length than other issues under reference because there has been greater policy development in this area compared with innovation and online engagement. The relatively smaller space devoted to the latter themes in this Issues Paper does not signal that we view them as being of lesser importance. OECD Principles for public sector information In April 2008 the Organisation of Economic Co-operation and Development (OECD) Council, adopted the Recommendation of the OECD Council for enhanced access and more effective use of public sector information. (Australia is a member of the OECD and was a participant in and a signatory to the Recommendation.) It recommends that member countries “in establishing or reviewing their policies regarding access and use of public sector information…take due account of and implement the following principles, which provide a general framework for the wider and more effective use of public sector information and content and the generation of new uses from it.” The Taskforce acknowledges these principles and intends to use them as a starting point for that part of our work relating to public sector information. Our focus then becomes how we realise those principles as fully as possible in the practical operations of government. 1. Openness. Maximising the availability of public sector information for use and re-use based upon presumption of openness as the default rule to facilitate access and re-use. Developing a regime of access principles or assuming openness in public sector information as a default rule wherever possible no matter what the model of funding is for the development and maintenance of the information. Defining grounds of refusal or limitations, such as for protection of national security interests, personal privacy, preservation of private interests for example where protected by copyright, or the application of national access legislation and rules. 2. Access and transparent conditions for re-use. Encouraging broad non-discriminatory competitive access and conditions for re-use of public sector information, eliminating exclusive arrangements, and removing unnecessary restrictions on the ways in which it can be accessed, used, re-used, combined or shared, so that in principle all accessible information would be open to re-use by all. Improving access to information over the Internet and in electronic form. Making available and developing automated on-line licensing systems covering re-use in those cases where licensing is applied, taking into account the copyright principle below. 3. Asset lists. Strengthening awareness of what public sector information is available for access and re-use. This could take the form of information asset lists and inventories, preferably published on-line, as well as clear presentation of conditions to access and re-use at access points to the information. 4. Quality. Ensuring methodical data collection and curation practices to enhance quality and reliability including through cooperation of various government bodies involved in the creation, collection, processing, storing and distribution of public sector information. 5. Integrity. Maximising the integrity and availability of information through the use of best practices in information management. Developing and implementing appropriate safeguards to protect information from unauthorised modification or from intentional or unintentional denial of authorised access to information. 6. New technologies and long-term preservation. Improving interoperable archiving, search and retrieval technologies and related research including research on improving access and availability of public sector information in multiple languages, and ensuring development of the necessary related skills. Addressing technological obsolescence and challenges of long term preservation and access. Finding new ways for the digitisation of existing public sector information and content, the development of born-digital public sector information products and data, and the implementation of cultural digitisation projects (public broadcasters, digital libraries, museums, etc.) where market mechanisms do not foster effective digitisation. 7. Copyright. Intellectual property rights should be respected. There is a wide range of ways to deal with copyrights on public sector information, ranging from governments or private entities holding copyrights, to public sector information being copyright-free. Exercising copyright in ways that facilitate re-use (including waiving copyright and creating mechanisms that facilitate waiving of copyright where copyright owners are willing and able to do so, and developing mechanisms to deal with orphan works), and where copyright holders are in agreement, developing simple mechanisms to encourage wider access and use (including simple and effective licensing arrangements), and encouraging institutions and government agencies that fund works from outside sources to find ways to make these works widely accessible to the public. 8. Pricing. When public sector information is not provided free of charge, pricing public sector information transparently and consistently within and, as far as possible, across different public sector organisations so that it facilitates access and re-use and ensures competition. Where possible, costs charged to any user should not exceed marginal costs of maintenance and distribution, and in special cases extra costs for example of digitisation. Basing any higher pricing on clearly expressed policy grounds. 9. Competition. Ensuring that pricing strategies take into account considerations of unfair competition in situations where both public and business users provide value added services. Pursuing competitive neutrality, equality and timeliness of access where there is potential for cross-subsidisation from other government monopoly activities or reduced charges on government activities. Requiring public bodies to treat their own downstream/value-added activities on the same basis as their competitors for comparable purposes, including pricing. Particular attention should be paid to single sources of information resources. Promoting non-exclusive arrangements for disseminating information so that public sector information is open to all possible users and re-users on non-exclusive terms. 10. Redress mechanisms: Providing appropriate transparent complaints and appeals processes. 11. Public private partnerships. Facilitating public-private partnerships where appropriate and feasible in making public sector information available, for example by finding creative ways to finance the costs of digitisation, while increasing access and re-use rights of third parties. 12. International access and use. Seeking greater consistency in access regimes and administration to facilitate cross-border use and implementing other measures to improve cross-border interoperability, including in situations where there have been restrictions on non-public users. Supporting international co-operation and co-ordination for commercial re-use and non-commercial use. Avoiding fragmentation and promote greater interoperability and facilitate sharing and comparisons of national and international datasets. Striving for interoperability and compatible and widely used common formats. 13. Best practices. Encouraging the wide sharing of best practices and exchange of information on enhanced implementation, educating users and re-users, building institutional capacity and practical measures for promoting re-use, cost and pricing models, copyright handling, monitoring performance and compliance, and their wider impacts on innovation, entrepreneurship, economic growth and social effects. Structure of paper The remainder of this paper discusses OECD principles and additional principles as they relate to online innovation and engagement. • Principles for openness and access (OECD principles 1-3, 6, 10) • Principles for quality and integrity of information (OECD Principles 4 and 5.) • Principles to maximise efficiency in production and distribution of information (OECD principles 7-9, 11-13) • Maximising the potential of Government 2.0 Principles for openness and access Open access to public sector information is generally agreed to be beneficial to our economy and society and to be the preferred approach. By openness and access, we refer to the making available of appropriate categories of public sector information on terms and in formats that permit and enable use and reuse of that information by any member of the public. However, we recognise that there are limits to this principle of open access, namely to respect privacy, confidentiality, security and possibly cost recovery concerns. For the purposes of this issues paper public sector information is taken to exclude personal information that would not be available for publication or reuse under Australian privacy laws, or other legislation. It might include such information if it were adequately transformed to address any concern, for instance by anonymising it. Another issue is how widely policies to optimise the openness of public sector information should apply across government. The recent Victorian Parliamentary inquiry proposed that public sector information policy should apply to government departments only, at least for an initial period, although it suggested that it may be appropriate to expand this coverage over time. We would be interested to hear arguments for and against restrictive and more expansive application of policies to optimise the openness of public sector information and, where a broader definition is supported, how this might relate to information that is commercially sensitive. Question 1: How widely should policy to optimise the openness of public sector information be applied? Should it be applied beyond government departments and, if so, to which bodies, for instance government business enterprises or statutory authorities? Openness (OECD principle 1) The OECD recommends that the presumption of openness should be the default rule, and this has been backed by recent moves in the Australian Government. Proposed changes to the Freedom of Information Act 1982 (FOI Act) aim to make it easier to obtain documents under FOI legislation, in part by emphasising the presumption of openness. FOI Act changes also aim to encourage the release of information through a publication scheme and otherwise outside that Act. Proposed changes to the Archives Act 1983 bring forward the time at which government records come available under that Act from 30 to 20 years. These changes are backed by the proposed creation of an Information Commissioner and Freedom of Information Commissioner. These legislative changes are a significant move in the direction of accessibility of government information. One of the major barriers to achieving greater accessibility has been the lack of a pro-disclosure culture within government. Privacy, national security and confidentiality issues will properly prevent the release of some information, but this should not inhibit the release of other non-sensitive government information. Question 2: What are the ways in which we build a culture within government which favours the disclosure of public sector information? What specific barriers exist that would restrict or complicate this and how should they be dealt with? Question 3: What government information would you like to see made more freely available? Question 4: What are the possible privacy, security, confidentiality or other implications that might arise in making public sector information available? What options are there for mitigating any potential risks? A comment from our Beta consultation: I believe that Question 2 is one of the most important problems we face in adoption of this goal. Broad cultural change is required across government that encourages innovation whilst providing a safety-net for those who try and fail. Leadership from the highest levels and generational change is required to make this a reality. The key is not to expect too much too soon as transparency is a terrifying concept for most government agencies and their officers. All of the technical, legal and logistical problems will be solvable, but worthless without real cultural change at all levels of government. David Heacock Access and transparent conditions for re-use (OECD principle 2) Government agencies currently make a large amount of information available on their websites, and much more could be made available freely on the internet. However, technological, copyright and licensing issues tend to restrict the way that this information can be made available and used by the public. Making government information accessible online, particularly in standard formats such as XML, CSV, ODF, RDF or RDFa etc allows those outside government, whether they are citizens, firms or third sector organisations, to combine, present and analyse this information in different ways, creating both public and private benefits. Question 5: What is needed to make the large volume of public sector information (a) searchable and (b) useable? And in each case, what do we do about legacy information in agencies? How might the licensing of on-line information be improved to facilitate greater re-use where appropriate? The Semantic Web The Semantic Web is a series of World Wide Web Consortium (W3C) standards that provides a framework to describe information about data. This information is called metadata. Providing sets of raw data without accompanying context may limit the ability of people to meaningfully re-use any information provided. For example, what does the data element ‘60’ represent? Is it someone’s age? A speed limit? When was the information collected? By whom? What are the units of measurement? Providing metadata in a standardised format also facilitates a precise search. For example, ‘What are the Commonwealth import duties for a lathe purchased from Germany?’ In Australia the Australian Government Locator Service (AGLS) Metadata Standard (AS 5044) has been endorsed by all Australian Governments as the standard for describing government resources (information and services) to support their discovery in a Web environment. AGLS is based on and extends the international resource discovery metadata standard, the Dublin Core Metadata Element Set. AGLS metadata can be expressed using RDF (Resource Description Framework) syntax and modelling, which is one of the recommendations of the Semantic Web. There are other relevant metadata standards as well for things like rights management, geospatial data, recordkeeping, digital preservation, etc, all of which can potentially be useful in a semantic web environment, but discoverability is the key requirement for which you need standardised metadata for the Semantic Web to work. There are of course costs associated with marking up data with semantic annotations. These costs increase with the degree of metadata provided for each element. A difficult-to-answer issue what be at what point do the costs of providing extra information exceed the benefits? Ensuring discoverability - asset lists (OECD principle 3) How could information be made more accessible? Question 6: How does government ensure that people, business, industry and other potential users of government information know about, and can readily find, information they may want to use, for example, the use of a consolidated directory or repository for public sector information? New technologies and long-term preservation (OECD principle 6) Publication in proprietary formats can represent a barrier to participation for citizens if the owner of intellectual property in the standard refuses to make it freely available. In addition, a requirement for government to maintain information in multiple formats represents a cost to government. Some national and sub-national governments have mandated that all information must be accessible and stored in formats that are publicly open standards. Thus such formats like Open Document Formats (ODF) have been preferred to proprietary formats such as DOC. Question 7: Should governments mandate that information should be only kept and stored in open and publicly documented standards? Could such a stipulation raise costs or reduce flexibility? It should be possible to share the benefits and knowledge gained from online and information initiatives across government. However, this largely depends on the interoperability of information and business architectures between government agencies and between them and their users. Interoperability in turn depends on a range of factors including the adoption of standards and definitions for recording information to enable it to be shared. Question 8: What approaches should the Government use to allow information to be easily shared? In addition, there are many online and information initiatives being trialled across government agencies. A variety of online tools, technologies and platforms are being tested and used. In the Web 2.0 sphere, these include the use by agencies of blogs, YouTube, Flickr and Facebook. Some additional principles outlined in an exploration of the issues relating to the use of Web 2.0 by Tim O’Reilly include the following: • Support lightweight programming models that allow for loosely coupled systems • Cooperate, Don’t Control • Design for hackability and remixability • Network Effects by Default • The Perpetual Beta Question 9: How can the initiatives and ideas of agencies be harnessed for the benefit of agencies across government? How can duplication of effort be avoided? Data.gov The US Government has recently established the Data.gov website to increase public access to high value, machine readable datasets generated by the Executive Branch of the Federal Government. Data.gov includes searchable data catalogues providing access to data in three ways: through the "raw" data catalogue, the tool catalogue and the geo-data catalogue. The raw data and the Geo-data catalogues are provided in CSV, XML, KML or SHP formats. The Tools Catalogue includes pre-packaged data sets such as look-up tables. The stated goal of Data.gov is to improve access to Federal data and expand creative use of those data beyond the walls of government by encouraging innovative ideas (e.g., web applications). Another objective is to make government more transparent by creating an unprecedented level of openness. Redress mechanisms (OECD principle 10) To ensure these principles are implemented sensibly we need effective mechanisms for hearing complaints about and redressing government’s inaction in the release of information. Conversely, making government information available online may increase the risk of unintentional or inappropriate release of information that may damage an individual or business. If that information is then re-used, it may lead to proliferation of the harm. Formal complaints and appeals processes already apply across the Australian Government. Depending on the specific circumstances, a person has redress, for example, to appeal mechanisms in the FOI Act, the complaints mechanisms in the Ombudsman Act 1976 or Privacy Act 1988, or judicial mechanisms in the Administration Decisions (Judicial Review) Act 1977. Question 10: Are these complaints and appeals processes sufficient? Are additional processes needed for government as it engages in the Web 2.0 world? Principles for quality and integrity of information Quality and integrity (OECD principles 4 and 5) All government agencies are engaged in the creation and collection of information and government’s online engagement with citizens is subject to the same information laws, such as the Freedom of Information Act 1982, the Archives Act 1983 and the Privacy Act 1988, as are the records of other interactions with citizens. The fundamental importance of good recordkeeping to ensure transparent and accountable government has been widely recognised, as has the part played by failures in recordkeeping in many inquiries and audit reports. Question 11: What should government do to foster a culture of compliance with information and records management policies and best practice? Question 12: What recordkeeping challenges are posed by both the re-use of government information, and in the mechanisms of development of government policy and practice through interactive citizen engagement? There is rich potential in this area for perverse outcomes. Agencies frequently cite concerns about the integrity of their information as a reason for their reluctance to release it. And the perfect can be the enemy of the good. On the one hand mandating the release of information might be one way of ensuring that agencies have an incentive to maintain its quality and integrity. On the other hand the release of some information (with an appropriate disclaimer as to quality) may often, but not necessarily always, be better than not releasing it at all. Question 13: How does government manage the costs and risks of publication of inaccurate information? An important aspect of quality (and integrity) is the provision of information (‘metadata’) that describes the quality of information, so that users can determine whether it is ‘fit for purpose’ in terms of their proposed use of the information. For example, knowing the source of the information, the checks the information has been subject to, and any other factors that might affect accuracy, can help users know how the information might be used appropriately and equally important, the hazards in using it improperly. Users may be able to interact with government information providers to better understand the information (and therefore increase the likelihood that the information will be used appropriately) or to express concerns about aspects of the information. Citizens expect government information to be of high quality and integrity but will also have an expectation of the responsiveness of government to deliver information. Timeliness Timeliness is a particularly important matter. From at least the late 1970s the ICT revolution has been driven by firms that have made felicitous tradeoffs between the quality of their offering and getting their product to market. Too early and the market could turn against a product for the number of bugs and other errors which frustrate users. Too late and the market has moved on. This was the case even before ‘Web 1.0’ as summarised in Steve Jobs arresting comment “True genius ships”. But it is particularly so in the world of Web 2.0 where it is now quite normal to provide users with comprehensive access to beta products and indeed to leave them designated as beta products for many years. Gmail only recently moved out of beta after five years as a mainstream consumer product. The issue raises its head particularly in the area of data where government agencies delay publication to ensure data integrity anxious either from a natural desire to do their job properly, or to minimise risk, or to meet standards internally mandated within government. In the meantime, as we saw in the case of the Victorian fires, valuable information however imperfect goes unpublished. Question 14: What criteria might we adopt in ensuring that agencies make data available in a reasonable time-frame? (And how might we define a “reasonable time-frame”?) Question 15: It often takes quite some time to compile and create consistent and reliable data – especially for large data sets. When is it appropriate to release limited and possibly less accurate data and where is it appropriate to wait for higher quality and more extensive data? Where various principles are in some tension with each other, for instance quality and cost or timeliness, how should trade-offs be made? The National Toilet Map As part of the National Continence Management Strategy, the Australian Government funded the development of the National Toilet Map website . The website shows the location of more than 14,000 public and private public toilet facilities across Australia. Details can also be found along major travel routes and for shorter journeys as well. Useful information is provided about each toilet, such as location, opening hours, availability of baby change rooms, accessibility for people with disabilities and the details of other nearby toilets. A number of organisations, commercial and not-for-profit, large and small, have requested access to the data in order to provide a range of innovative services. To date, such access has not been granted. The wider availability of this information, through sources other than the National Toilet Map website, appears to promote the objectives of the National Continence Management Strategy and is consistent with the OECD principles enunciated earlier in this Issues Paper. Principles to maximise efficiency in production and distribution of information Intellectual property (OECD principle 7) It is hoped that, through strategic management of copyright and new Web 2.0 licensing tools like Creative Commons and similar open licensing mechanisms for database material, we can more easily provide the necessary permission to promote better access to and reuse of public sector information. In the short term this means using current copyright law and practice to do a better job and in the longer term assessing the appropriateness of existing copyright law for a digital environment and any changes that should be made to address problems. Question 16: What can we do to better promote and co-ordinate initiatives in this area? How can we draw key departments together? Question 17: What sort of public sector information should be released under what form of copyright license? When should government continue to utilise its intellectual property rights? Apps for Democracy Competition The 2008 Apps for Democracy competition was an initiative of the District of Columbia’s Office of the Chief Information Officer. The competition involved members of the public making an application using data from the 277 datasets made available by the District of Columbia. There was a total ofUS20,000 in prize money on offer, spread over 60 cash prizes ranging from $US100 to$US2000. The competition ran for 30 days and received 47 entries including web, Facebook and iPhone applications. Entries were divided into two categories: entries by professional agencies, and “indie” entries by individuals and groups of individuals.

Entries included a large number of geospatial mash-up applications making use of available datasets. The competition was viewed as an unqualified success by the D.C. government, as it cost $US50,000 to run, but provided a claimed$US2.6 million in value to the city through the created applications.

Government is subject to additional obligations which seek to ensure that all levels of our community are able to access its services, whether online or offline. For online engagement, government must consider those citizens who are excluded for various reasons, e.g. lack of access to technology, disability, health barriers, lack of computer-literacy, lack of English, lack of literacy, etc. Many of these issues are currently not adequately addressed by commercially available and popular online platforms.

Pricing and Competition (OECD principles 8-9) There is currently a mixed approach across government to the pricing of information. In the electronic world, the marginal costs of providing information are lower than in a paper-based environment, which could suggest that different pricing approaches might be appropriate. Furthermore, information is often considered as a ‘public good’, which also might impact on thinking about appropriate pricing policies.

Question 18: When should agencies charge for access to information? Should agencies charge when they are providing value-added services? What might constitute ‘value added services’ (eg customisation of information)? In what circumstances should agencies be able to recover the costs of obtaining the information or providing access? A common model in the private sector is ‘freemium’ distribution whereby many, often most, users are supplied with some product or service for free whilst others pay for use in large scale commercial enterprise (for instance AVG anti-virus) or for some premium product (for instance Word Web). Are there similar models for public sector information and/or do they merit further consideration?

A comment from our Beta consultation:

Pricing should also take into account the economic value of information if released.

There are many cases where there is significant positive economic or social value in making data freely available – such as the sharing of emergency data between government agencies (which currently is often costed at a level that discourages usage and therefore reduces the effectiveness of emergency responses).

Charging for maintenance and distribution costs can cost significantly more in lost economic or social benefit than it achieves in cost recovery.

Craig Thomler

Public private partnerships (OECD principle 11) Public-private partnerships might provide a way to make public sector information more readily available, for example by financing the costs of digitisation.

Question 19: How can government take advantage of public private partnerships to increase access to public sector information without unduly constraining opportunities for third parties to use and reuse the information?

International access and use (OECD principle 12) Many government agencies are involved in cooperative international programs and liaison. There are advantages to government in guiding interoperability and compatibility in dataset formats so as to ensure the most efficient and effective use of information.

Question 20: What international activities relevant to this Taskforce should the Taskforce be considering and what needs to be done to improve cross-border use and interoperability of information?

Best practice (OECD principle 13)

Question 21: How can best practice be facilitated, identified, rewarded, and further propagated?

Maximising the potential of Government 2.0

Fostering more consultative and collaborative online engagement in Government

There are obvious benefits to government in using collaborative technologies to draw on the skills, knowledge and resources of the general community when developing policies or delivering services. In many situations, much of the expertise, experience and deep knowledge that governments need to make good decisions about increasingly complex or ‘wicked’ problems exists outside government. New possibilities are emerging to link highly distributed networks of knowledge and expertise quickly and securely to focus on shared opportunities or problems to be solved.

In harnessing the opportunities arising from Web 2.0 technologies there is a potential for individuals to hesitate or avoid contributing where they sense that the technology isn’t ‘safe’. For example, people may fear that information about them will fall out of their control or they may avoid situations where they have to fully identify themselves before engaging with collaborative technologies. In this regard, embedding good privacy practices into collaborative technologies will play an important role in garnering the trust and confidence of individuals who wish to participate.

But beyond that, online engagement creates at least the potential to ‘democratise’ public administration and policy development by offering a much richer mix of spaces in which people can talk, listen, debate, argue and contribute their ideas and aspirations to the public conversation.

Moderated online engagement offers the potential for people to learn from each other and to constructively find common ground.

Question 22: Have you engaged with the Australian government via a Web 2.0 channel? Which one/s? If so, why and what was your experience? If not, why not? What can be improved?

Go to where the people are

A major finding of the UK Power of Information reports is that Government consultation efforts can be greatly enhanced by consulting with existing interest groups in their online communities, such as netmums.com. A similar approach involves employing social networks and existing forums and blogs to target a different audience than would normally respond to a traditional government consultation. In Australia a recent example of this was the use of the Open Forum blog by Father Frank Brennan , the Chair of the Human Rights Consultative Committee to engage netizens on questions relating to the consultation.

Different combinations of public interaction methods suit different requirements and different audiences.

Increasingly agencies are combining traditional modes of consultation with Web 2.0 features and applications to enhance the visibility, promotion and interactivity of Government online consultation efforts. These include:

•    promoting a consultation on social networks such as Facebook

•    blogs

•    using videos either hosted on the consultation site or on a third-party site such as YouTube

•    including RSS feeds on the consultation site.

A comment from our Beta consultation:

Having responded to one consultation, a user may be more likely to respond to another consultation.  A related consultation should be easily visible at the point of completion or commencement of a user’s response.

“Like this consultation?  If you’re interested, we’d also like your feedback on consultation X!”

Gordon Grace

Inclusion

The benefits of online engagement will be realised best if as wide a range of citizens as possible are involved. However, some people may be uncomfortable with this type of interaction with government.

Question 23: How can government capture the imagination of citizens to encourage participation in policy development and collaboration between citizens and government?

Question 24: What sort of privacy issues might dissuade individuals from engaging with government via collaborative technologies? What sort of steps can we take to ensure that personal information is used appropriately? What options are there for mitigating any potential privacy risks?

Governments have generally mandated minimum accessibility standards which can create obstacles to using some of the leading Web 2.0 platforms where they do not conform with those standards.

Question 25: How can government make it easier for people to engage on policy and other issues and make sure the opportunities are as open and accessible as possible?

Question 26: What trade-offs must be considered between government using commercially available and popular online platforms and ensuring inclusive participation with all members of society and how should those tradeoffs be made?

Privacy

It is significant that the Government is in the process of introducing legislation that proposes to incorporate the Office of the Privacy Commissioner, together with a Freedom of Information Commissioner, in a proposed Office of the Information Commissioner.  These initiatives illustrate the complex relationship and tension between protecting the privacy of individuals and opening access to public sector information.

A great deal of public sector information (PSI) is not on its face “personal information” as defined in the Privacy Act 1988.  On the other hand there can still be privacy issues or risks associated with open access to PSI.  Information from which only name and address has been removed, may still fall under the definition of “personal information,” as an individual’s identity may still be reasonably ascertainable from the information.

Re-identification of personal information is usually context-sensitive.  An organisation’s capacity to re-identify data may depend critically on its particular resources, or changing priorities.  Factors which may impact on the capacity for data to be re-identified include available data, new technologies, resources, and social or political imperatives for access to new or different types of data.  Combining unrelated datasets, now or in the future, may create the environment for more intrusive profiling, data-linking or data-matching of individuals’ personal information.

There are also privacy risks and issues relating to digital engagement, particularly around moderation, consent to publish and anonymity. For example, in respect to post-moderation, there is the risk that a participant may identify and provide information about another individual, which is published without that individual’s knowledge or consent.  This may constitute a breach of privacy by the relevant agency and provide grounds for a complaint to the Privacy Commissioner by the individual whose personal information has been disclosed.  This risk is not different in kind to existing risks, but the immediacy and ubiquity of the internet increases its likelihood considerably.

Online engagement challenges for Government

Australian Government efforts in online engagement have been crafted to comply with the Australian Public Service values, set out in section 10 of the Public Service Act 1999. These require that public servants to act in an apolitical, impartial and professional way.

The Australian Public Service Commission also recently released interim protocols for online media participation by public servants . There are a number of other legislative restrictions on what information can be disclosed by public servants. This has an impact on how free government agencies and public servants are to experiment with online consultation, since agency websites must be impartial and apolitical. This may affect the extent to which they can enter into meaningful discussion with the public.

Question 27: How can public servants comply with the APS values and other protocols whilst still participating in online engagement? Should existing rules including legislation be changed and/or adapted to facilitate greater online engagement?

Moderation Government collaborative websites such as blogs generally require moderation. This involves time and labour cost. Third-party moderation tools and services are available. The process of moderation should be transparent, with the principles and parameters of the editorial control specified. This is good practice in all online jurisdictions.

Online consultations seeking input from the public can be at risk of agenda hijacking and the derailment of discussion although other forms of engagement are not immune from such possibilities. Thus for instance when the Obama Administration held online consultations on what the new Administration’s new priorities should be, the legalisation of marijuana was voted the most important priority. More recently one of the most prominent priorities has been the release of Barack Obama’s birth certificate.

While it is appropriate that views about which people feel strongly are aired, it is also important for there to be an ability to ‘agree to disagree’ and get on with the process of using the strengths of online engagement to improve policy development without being diverted by the attention given to symbolic issues or to lowest common denominators in policy.

Question 28: How does government provide sufficient room for personal debate and passionate dissent but still ensure appropriate levels of moderation in online forums? Should moderation be ‘outsourced’ and if so in what circumstances and how? How might volunteers from the commenting community be selected to moderate?

A comment from our Beta consultation:

… If legalization of marijuana comes out of Obama’s online consultations, perhaps he should have a legalization-of-marijuana policy that stakes out a position on the issue.  Personally I couldn’t care less, but if it’s an issue that some folks think is important enough to get organized over, why shouldn’t it be on the agenda?  Would it hurt to put out a position paper?

Mark Newton

Fostering a culture of online innovation within government

New collaborative technologies are emerging all the time. These new technologies can improve the efficiencies of Government internally and can also alter and (hopefully) improve external-facing relations, particularly government-citizen engagement.

Innovation challenges for Government

Governments face responsibilities that are not always shared by the private sector or members of the broader community. Their conduct is expected to be above reproach. They are expected to be a trustworthy source of information and/or advice and they face a number of self-imposed obligations to ensure access and equity. Recognising this, there are a number of potential challenges to Government making effective use of these new collaborative technologies:

•    access to many of these platforms may be blocked or considerably constrained for public service officials

•     the potential of these tools may conflict, in real or imagined ways, with the rules, policies and practices that apply to the public service

•     the greater immediacy, transparency, accountability and informality they introduce into our communications may be directly contrary to the prevailing government practice

•    public servants may be concerned about being ‘overwhelmed’ by the potential volume of activity that might arise from the new collaborative technologies, particularly when there is an expectation that governments will respond to all issues raised by citizens

•    awareness of the new technologies and the opportunities that they offer may delay their adoption.

The use by government of collaborative platforms is a relatively new phenomenon and may require a rethink of applicable rules, policies and practices. It also requires the development of social and online norms in government-citizen relations. As one commentator noted in discussion about one blogging effort by the Australian Government:

"It’s probably worth remembering: as untried as government consultation blogs are at the federal level in Australia, so too are citizens unused to being able to engage with their government in this way. They may be new at it, but so are we - and both sides still have a lot to learn about the other.”

Cultural barriers may constrain the adoption of collaborative tools and the newness of the approach may generate trepidation and dissuade uptake within the public sector.

Question 29: What are the barriers to fostering a culture of online innovation within government? Which of those barriers should be maintained in any Government 2.0 initiatives? Which of those barriers should be removed? How should this be achieved? What different norms can or should apply to Government 2.0 efforts?

Question 30: To what extent can government assist the uptake of Government 2.0 by centrally providing standard business management guidance and tools to avoid agencies having to ‘reinvent the wheel’ when considering their own online engagement guidelines?

Question 31: How can government engage with individuals and stakeholders to support the development of innovative policies, programs, practices and service delivery? Are there good examples of where this is happening?

For profit firms often use the rich data they harvest from their existing information assets and their ongoing presence on the web to guide their own innovation, measuring consumer reactions to many small scale experiments and optimising operations, for instance the design of a website, in response to this feedback.

Question 32: To what extent can we promote such an approach in the public sector and are there any examples of emerging practice?

Risk management

It is a cliché that public sector managers – and possibly the Ministers to whom they report -- are risk averse. But often they are not so much risk averse as innovation averse. That is, there is a high ‘burden of proof’ against doing something differently even where it involves relatively low risks.

Sometimes this is because it is simply more comfortable to do things the way they’ve always been done. In other circumstances, some argue that specific professions can be set in their ways. There may be some wisdom in this given the complexity of existing systems and the possibility of unanticipated consequences, particularly where these consequences may be political. These decisions are often heavily influenced by experts.

Question 33: How can such expertise be governed so as not to unduly stifle innovation?

In comparison to many large commercial enterprises, public sector agencies in the main adopt quite restrictive practices in allowing staff access to Web 2.0 tools, social networking sites and even webmail. Most agencies simply ban access to these sites. One of the reasons often used to justify this position is the need to protect internal IT systems from exposure to threats from the internet. Highly prescriptive and centrally mandated security policies are often rigorously applied. Given the low risk culture of the public sector, it is difficult to see how agencies wishing to enter into the Web 2.0 world will be able to argue that the benefits to citizens, and to the operations of the agency, are of sufficient value to offset an exposure which cannot easily be assessed. Clearly the risks to agencies will vary depending on the nature of their business. It is unlikely that technology alone will solve this challenge.

Question 34: To what degree is the opportunity for Government agencies to participate in the Web 2.0 world inhibited, or severely compromised, by issues such as security? How might this problem be overcome, in general and by individual agencies, within current legal and policy parameters and how might these parameters be changed to assist in overcoming these problems?

Contractual and procurement issues

The use by government agencies of social networks and Web 2.0 applications and services may raise contractual and procurement issues for governments such as unacceptable indemnity clauses.

The United States Government, through the General Services Administration, negotiated whole of government agreements with Flickr, YouTube and other Web 2.0 providers with waivers of objectionable provisions. Similar agreements with Web 2.0 providers may be needed in Australia.

Proposed Information Commissioner

The Australian Government has proposed legislative reforms with the principal objects of promoting a pro-disclosure culture across the Government and building a stronger foundation for more openness in government. These reforms involve changes to the Freedom of Information Act 1982 and Archives Act 1983 and the establishment of an Office of the Information Commissioner (OIC).

The functions of the Information Commissioner are set out in Clause 9 of the exposure draft and require the Information Commissioner to report to the Minister on a broad range of policies and practices relating to the administration and management of government information.

This Taskforce, in its Terms of Reference , has been given the task of identifying policies and frameworks to assist the Information Commissioner (and other agencies) in encouraging the dissemination of government information.

The Information Commissioner functions set out in the proposed Exposure Draft will obviously encompass issues that touch on questions raised in this Issues Paper. One of these is which aspects of Government information could fall within the purview of the proposed OIC.

These include, but are not limited to, the information management standards, policies and guidelines that are the responsibility of the National Archives, the IT system issues that are the responsibility of the Australian Government Information Management Office, and the administration of copyright that is the responsibility of the Attorney-General’s Department.

These areas all have some impact on recommendations the Taskforce might make.

Question 35: What role could the proposed OIC play in encouraging the development of Government 2.0? Are there practical recommendations the Taskforce might make about how the OIC might best fulfil its functions in relation to optimising the dissemination of Government information?

Appendix 1

Making a Submission: Terms of Engagement

We welcome your written submissions. There is no set format required and submissions need not be formal documents.

Submissions in electronic format are preferred and can be emailed to us at submissions@gov2.net.au.

If that isn’t possible, you can mail them to:

Government 2.0 Taskforce Secretariat Department of Finance and Deregulation John Gorton Building King Edward Terrace Parkes ACT 2600 Australia

We also offer the option to make online submissions through our Consultation page at http://gov2.net.au/consultation.

As a general principle all written submissions will be placed on the Government 2.0 website, as will discussion papers and other material developed as the Taskforce progresses.

Confidential submissions will be accepted from individuals where individuals can argue credibly that publication might compromise their ability to express their view freely. Pseudonymous submissions will also be accepted. Should you make a pseudonymous submission, it may not receive full consideration unless you remain contactable by e-mail should we wish to seek clarification or elaboration.

Please note that any request made under the Freedom of Information Act 1982 for access to any material marked confidential will be determined in accordance with that Act. Submissions must be received by start of business Monday 24 August 2009.

If you do not want to make a written submission but would still like to give us some feedback, you can communicate with us on our blog at http://gov2.net.au.

Appendix 2

Terms of reference

•    make government information more accessible and usable — to establish a pro-disclosure culture around non-sensitive public sector information;

•    make government more consultative, participatory and transparent — to maximise the extent to which government utilises the views, knowledge and resources of the general community;

•    build a culture of online innovation within government — to ensure that government is receptive to the possibilities created by new collaborative technologies and uses them to advance its ambition to continually improve the way it operates;

•    promote collaboration across agencies with respect to online and information initiatives — to ensure that efficiencies, innovations, knowledge and enthusiasm are shared on a platform of open standards; and

•    identify and/or trial initiatives that may achieve or demonstrate how to accomplish the above objectives.

The Taskforce will advise government on structural barriers that prevent, and policies to promote, greater information disclosure, digital innovation and online engagement including the division of responsibilities for, and overall coordination of, these issues within government.

The Taskforce will work with the public, private, cultural and not for profit sectors to fund and develop seed projects that demonstrate the potential of proactive information disclosure and digital engagement for government. More information can be found on the Taskforce’s Project Fund page.

In particular the Taskforce will also identify policies and frameworks to assist the Information Commissioner and other agencies in:

•    developing and managing a whole of government information publication scheme to encourage greater disclosure of public sector information;

•    extending opportunities for the reuse of government information, and considering the terms of that use, to maximise the beneficial flow of that information and facilitate productive applications of government information to the greatest possible extent;

•    encouraging effective online innovation, consultation and engagement by government, including by drawing on the lessons of the government’s online consultation trials and any initiatives undertaken by the Taskforce.

The Taskforce will meet regularly, consulting in an open and transparent manner and use online solutions for its engagement wherever possible.

The Taskforce will provide a final report on its activities to the Minister for Finance and Deregulation and the Cabinet Secretary by the end of 2009. The Taskforce will disband on completion of its final report.

Creative Commons: some rights reserved

Unless otherwise specified, posts are licensed under the Creative Commons Attribution licence, Australian variant 2.5.

The Taskforce does not hold copyright for the Government 2.0 logo which was designed by Ben Crothers of Catch Media but as a condition of entry to the design competition, the creator of the logo consented to its use under a Creative Commons Attribution Non Commercial Use license Australian variant 2.5 .

8th May 2009

## Patents

I think that is the most important thing I gathered from this lecture by two Freehills attorneys (Stuart Irvine & Ronelle Geldenhuys) about IP and software patents. Lecture slides here.

Monopoly vs. Secrecy. In order to get the monopoly you must give up the secrecy.

Patents protect functionality.

Patents can be used as a sword (legal action to get royalties or force the infringer to stop), shield (dissuade others from infringing), war chest (trade and negotiation).

A patent gives the patent owner an exclusive right to exclude others from exploiting (manufacturing or importing a patented product or using or importing a product made by a patented process) an invention in a particular country.

To enforce a patent, the patent owner must take the infringer to court.

Tests for patentability,

• Patentable subject matter
• Industrially applicable
• newness (any prior art?)
• obviousness

With regards to patenting mathematical algorithms,

"A method of calculating a value c, where c = ex x sin(t)" is not patentable however this is,

"A method of determining the length of a road (L) in metres by applying the formula $L = \cos \theta \times N \times g^2$ where $\theta$ is the gradient of the road, N is the number of litres of fuel used by a car travelling on the road, and g is the acceleration due to gravity”, According to APO, Manual of Practice and Procedure, Volume 2. Sounds a bit silly to me.

An example,

US Pat. 5356330 (via google) - Apparatus for simulating a "high five"

Self publication prior to filing does class as prior art, meaning you cannot get the patent.

To invalidate a patent you just need to find prior art. That is, find the idea published prior to the filing date of the patent. Lesson here, if you know you don't want to get a patent for something and you want it to remain free to the world publish your idea/concept. Remember you don't need something working in order to patent it. Just detail how it would work (that's easier than getting it to work right?).

US patent 5490216 (or via google) is interesting. Filed in 1993, its a System for software registration. Basically there is a demo mode and a full mode. To get the full mode you need a registration key. Thats the general gitz. I didn't read the whole thing.

There are other examples,

• IBM holds patent #4,965,765 which covers the use of different colours to distinguish the nesting level of nested expressions. (Filed: 1986)
• Patent #5,249,290 covers assignment of client requests to the server process having the least load. (Filed: 1991)
• Patent #4,941,125 covers using a digital camera in conjunction with character recognition software to store and index documents on a CD ROM. (Filed: 1984)

I don't know what to think. They seem trivial, simple and obvious, but they weren't published today. As most people would say, you need to ensure that trivial patents are not granted (problem here is how do you define trivial?), and that the term is not too long (20 years is too long in my opinion).

Patenting of illegal methods in not allowed, though you may patent a things which may be used illegally such as gun (heh, otherwise nothing would be patentable).

Interesting example. A safe design was patented and then a thief used the patents to work out how to break it.

-----------------------

In terms of software, copyrighting software only stops others from using the same implementation as you. They are free to use an alternate implementation to do the exact same thing.

You can copyright compiled machine code.

I have a lot to say about this (creative/computational universe, and the clouds that span derivative works). So much that I'll have to leave it till later.

-----------------------

## Registered Designs

Registered designs are interesting. There is a nice brochure from an Australian Law firm here.

A registered design provides a monopoly of a limited duration (max 10 years in Australia) granted by the government to an entity of a "concept" which determines the appearance of a product. I'm a little confused here as I though (its such a shame that the audio recoding from that lecture is corrupt) Geldenhuys said that registered designs are for a specific device. So if you register a design for an electronic device, anyone can use that design for say a paperweight. However in their lecture slides it says that registered designs protect appearance not functionality.

You will all probably recognise AU Registered Design 307210. Currently owned by Apple Inc. and must expire by Nov 23, 2015.

All registered designs must have a "Statement of Newness and Distinctiveness". AU RD 307210 says, "Newness and distinctiveness is claimed in the visual features shown in solid lines in the representations."

Registered designs must be renewed to stay protected. Though they have a max of 10 years, renewal fees get larger near the end of the designs protected life, either Irvine or Geldenhuys then added to this "governments don't like monopolies". Sorry but I strongly disagree with you there. If governments didn't like monopolies they would abolish crown copyright.

I won't say too much here. But here is a sample trade mark "thing"(?).

[caption id="attachment_517" align="aligncenter" width="450" caption="Trade Mark 1111537 (http://pericles.ipaustralia.gov.au/atmoss/Falcon_Details.Print_TM_Details?p_tm_number=1111537&p_ExtDisp=D&p_Detail=DETAILED&p_Search_No=2&p_Lastrecord=FALSE&p_Is_Internal=F)"][/caption]

You don't publish, you just swear everyone to secrecy (contracts). Does not protect against reverse engineering or independent formulation.

8th May 2009

I went to a Talk by a Patent Attorney (Stephen Fung) the other day (3rd April 2009) about Patents. It was quite interesting. Here are some notes I made.

• Patent examiners work for the government.
• Patent attorneys are not lawyers, they have a science or engineering qualification

A provisional patent can be rubbish, and you can still amend it before you try to get it turned into a full patent. Its used as documentation of the invention at a specific time so that you have evidence and proof that it existed at a specific time.

Patents are a commercial instrument.

Often the venture capitalist will tell the person or company they invest in to file some patents. These people then go to the patent attorney, tell them this is what I've done, just file anything.

An interesting thing about patentable material, using the example of say a compression algorithm, the mathematical foundations are not patentable, but if you incorporate that into say a chip, you can patent that and prevent others from implementing the algorithm into chips of their own.

If you have some new invention that you want to try to patent. You may speak with a patent attorney, go through Technology Transfer (eg. New South Innovations), do the patent yourself, do not disclose until you have filed something.

If you copyright your source code it only protects that "creative expression" of the code. So if someone wrote the exact same program in another programming language then you cannot hinder their distribution of that.

If you patent the underlying algorithm then no one can use of implement that algorithm.

"Patent It Yourself" is apparently a good book.

Tags: law.
8th May 2009

I was looking forward to this talk by David Vaile since his name keeps popping up everywhere I go. So here are some rough notes I took down (and then expanded on some points now). His full slides can be found here.

This slide gives a nice overview.

(David Vaile. Legal perspectives on system development)

Lawyers can speak for clients (i.e. on their behalf). So you may want to be careful of what they are saying for you.

Cases are often about motivation. Why you did something. Your intent. Its not a whole science. eg. murder/manslaughter. did you intentionally push someone in front of a train, or did you slip and accidentally push them in front of a train. This can make a difference in a trial.

Criminal --> Beyond reasonable doubt. Civil --> Probability. Does not need to be beyond reasonable doubt.

Lawyer's will generally say "with respect I think you are wrong" rather than the direct "you are wrong".

Law exists to regulate. "It won't just work out itself [if we don't have laws]".

Courts can be expensive and risky. Going to court may not always be the best idea.

ASIC, ACCC... can step in sometimes. This strips away the companies advantage (lots of 's and lawyers) in a case against an individual.

"If you make something accessible in another country is that publishing in that country?" One court case says yes. I find this surprising. If you publish something on a web server in your country and allow all IP's to access your web pages then another country considers you publishing in that country??? Unfortunately Vaile didn't give the case reference for this (UPDATE: This is the case and here is a list of law journal articles referring to the case. I'll probably make another post once I get a chance to take a closer look at it).

Due to the free trade agreement its now illegal to copy even when allowed if you break the DRM.

Suing your customers --> turns them against your company! This builds a coalition of difference to try to change the law. The turning point is if that coalition is large enough. Could this mean that to win the copyright fight we must get the film studios to sue as many people as possible? I would hope not, and rather hope that people become aware of the current problems on their own accord not through legal action against them.

Litigation risk may change over time. You may do something now that has a low risk of litigation but in a year or so that may change. That minimal risk does not increase your chances of winning the case.

This slide from Vaile's talk is enlightening for me.

(David Vaile. Legal perspectives on system development)

Mainly because its so easy to fall through the top one that you forget there are layers underneath. Copyright laws is so tough and stupid its hard to convince yourself that you should not break them. You loose faith in the law and begin to not worry about anything. But the law is just one standard. Professional standards and ethics come into play. Let me look at some example cases.

 Liability Litigation Risk 'Professional' standards (will your peers & colleagues reject you?) Ethics (Will your children & friends reject you?) Murder Illegal High Yes (probably) Yes (probably) Copyright Infringement of a feature film to avoid paying Illegal Low Perhaps Perhaps Copyright Infringement of a feature film to transfer a purchased DVD to a portable device (prior to amendments) Illegal Very Low No (unlikely) No (unlikely)

I think its just as important, if not more important to consider the bottom two standards (professional standards and ethics) than the top two (liability and litigation risk). These bottom two are still important even if you can get away with the illegal act.

Privacy. There are two interests here, the individual and the government.

 The Individual. "I want to be left alone." 242227954b0d84ba7550fd6e3d10b9d0 The Government. “What have you got to hide? Tell us.”
When a political party is trying to pass a law public interest/politics may come into play and cause a party to back down on a bill, even if they can get it passed and want it passed.
 US Australia Upper House Senate Senate Lower House Congress House of Representatives

The Australian SPAM act has no private right to sue. Must rely on ACMA. The US CANSPAM act has private rights to sue.

Tags: ethics, law, seng4921.
11th April 2009

There are two sources of law.

• Statutory Law: In Australia Statutory Law is written law set down by parliament. Before a law can come into force, the Bill must pass through both Houses of Parliament.
• Common Law: “Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action. Common law is law created and refined by judges: a decision in a currently pending legal case depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent.” –Wikipedia

Statutory law trumps common law.

In Australia, the legal system can be broadly classified into 4 different jurisdictions:

• Criminal Jurisdiction
• Civil Jurisdiction
• Contract Law
• Tort Law
• Equity

Litigation refers to the process of a lawsuit (when you take someone to court).

• The burden is on the party bringing the action (the Plaintiff)
• Litigation can be costly and something to be avoided
• Consider mediation and arbitration for civil matters

Punitive damages (in contrast to compensatory damages) are damages not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff.

In the area of Contract Law, clicking an OKAY button on a webpage or during installation is legally binding!

In the lecture we took a look at the Microsoft Windows Vista License Agreement. Though I think the iPhone License Agreement is worth taking a look at too.

### References

Ho. Peter S. 2009. Introduction to Law and Contracts.

Tags: law, seng4921.
13th March 2009

I was just reading this (which coincidently seems much better written in terms of style and content than what I write here on my blog),

"In my opinion, copyright and patent laws are entirely suboptimal, especially with regard to the digital side of things. The concept of a patent is a noble one -- that is, it allows the inventor of some concept to be protected by the law for a certain amount of time in the production or implementation of that concept. Before patents, inventors would hold their ideas very close to their chests, so nobody could steal them. They'd make a killing selling whatever it was they invented, then take their secret to the grave. Obviously the loss of knowledge is regrettable, but there was no way to let future generations benefit from the invention without giving away its secrets (and thus, your rights). Enter patents. The concept behind patents is that they provide protection for the patent holder for a time, given that he describes it in enough detail for his idea to be replicated. This solves the problem at hand quite neatly: the inventor keeps a grip on his invention, and is given ample time to monopolise upon it. If the inventor were to pass away, the knowledge is retained and can be referred to in the future. The period during which the patent can be enforced is, in most cases, 20 years. But, wait -- if we're to apply such a law to computer programs... when was the last time you used a 20-year-old piece of software? When was the last time you used even a 7-year-old piece of software? Probably about six years ago. Patents are still a good idea in software, but the patent term needs to be drastically reduced for it to apply sanely. 18 months, at a maximum." --http://nornagon.livejournal.com/27709.html

It got me thinking, patent law was really designed for a different age where you invented things such as the telephone and the Rubik's Cube. Patents documented the inner workings of the invention and how to build it. Thus after the patent owner has made some money from their invention and it falls into the patent equivalent of the public domain anyone else can make it and build upon it. Enter the digital age where generally copyright is used to protect computer software rather than patents (I've heard of software patents, but they don't require submission of source code). Copyright was intended to protect creative works where there are no "inner workings" or "instructions" needed in order to build it. Given the fact that most (maybe not most, but lots of) software is written in programming languages that get compiled into machine code, computer software needs these "inner workings" and "instructions" i.e. the source code in order to build upon it once the original creators have made some money.

There are two problems here with the fact that software falls under copyright rather than patents.

1. When the protection expires there is no method to ensure that the source is published, and
2. secondly copyright laws currently last life + 70 years. In some cases this could be 160 years it takes for the copyright to expire. By then the technologies would have most certainly changed and the software would be of no use (even if the physical storage medium has survived that long (though I think laws now allow copying for backup)). As suggested in the quoted article above a reasonable protection length would need to be less. I think 2-3 years, but really an experienced team of worldwide economists would be able to come up with this figure much better than I could. This would, I think, push innovation forward as software creators would need to come up with new things in order to continue the income stream.

But what if the government's were to introduce some new patent laws that tried to put computer software under patent laws rather than copyright (yes I know that's a semantics issue, but I'm referring to the current laws). Well lets say that the law said that you will only have protection for your computer program if you give us the source which we will lock up and then release after a few years. Despite the fact that you would need to employ a lot of patent officers, I don't think this will work because,

1. its hard to tell if the source that was provided really was everything for the program (i.e. manual checking would be needed.)
2. you could argue that machine code is the source (i.e. say you wrote the program in machine code when you really used C++)
3. that creators will just say "okay we don't need protection from the law, we won't use patents, we'll just implement our own DRM and skip your patent laws". This is even worse as it locks up the program for as long as it takes to crack the DRM.

Another key thing is that even in the time of patents if you bought a product that was protected under patent law, you were still allowed to make changes to it. For example if you bought a Rubik's Cube and if it was protected by a patent, the law could not stop you for example pulling it apart to see what it looks like on the inside, or writing some numbers on the outside squares. However now in the digital age and particularly with the DMCA you cannot even do this (though I don't think Australia has any law that is equivalent to the DMCA that restricts you circumventing DRM). In these time it is apparently illegal for you to open up and change your own products that you have purchased and own.

3rd March 2009

So I just read the article over at ZDNET.com.au. Sadly this sounds all to common. I recommend you read the article for yourself.

This is terrible news.

I don't know the legal status of whether RailCorp would win if they went to court, but either way this in more evidence of Australia's poor Copyright laws. The fact that government created facts that are not creative works can be protected by copyright is absurd. Dispite numerous reviews (Crown Copyright Law Review 2005, Review of The Nation Innovation System (though the Government is still reviewing the findings of this one)) nothing has changed.

As the article states, "A 2005 inquiry by the Copyright Law Review Committee recommended relaxation of Crown copyright provisions to allow for more easy access to public interest information, but those changes have yet to be implemented and RailCorp is standing by its challenge.". This inquiry was done in 2005, it is now 2009 so its safe to assume that the Government is not willing to change the laws in light of the recommendations.

They say that they are using copyright laws to protect people from information that may be false. That is a poor argument. The public know this, they know that this is a service provided by a third party and that it may not be accurate. This works because if there are too many problems with it for what the consumer is happy to accept they will simply not use this. This is no excuse to stop people using/republishing/remixing facts.

I always thought that copyright laws were there in order to create incentive for the original creation of a creative work. Thought I think that this is more of a US constitutional or outdated view. I do not necessarily agree with this, and I don't think that is the sole reason we need copyright laws. But obviously that is not what the copyright laws are doing in this case.

I'm just hoping that the Department of Broadband, Communications and the Digital Economy fixes crown copyright soon before this mess continues.

22nd January 2009

In the past week (more like a month now) or so I've had a few requests asking me how I got access to my exam scripts (i.e. my exam responses) and how they (having just completed their HSC) could access theirs. In light of this I thought I would explain why I think exam scripts should be accessible to the student.

About a year ago I made a request for my HSC examination scripts under the Freedom of Information Act 1989 (NSW). The process for submitting a FOI request is documented by the Board here. I was granted copies of these documents[my exam scripts]. In the past people have requested things such as raw marks, I did request those too but that was denied for me. You should note that the Board may or may not grant access to these documents in the future.

Now to why I think students should have access to their scripts, which is mainly because it makes the whole process more transparent (even US President Obama is pressing this with his recent FOIA memo). There should be nothing to hide, students should be able to check what they wrote in the exam. They should be able to publish this along with how their response was marked so that it can be scrutinised and studied by future students. I'm not convinced that this is the best study approach in the long term but that is no excuse for disallowing access to scripts. It would also be great if students could also find out how their questions were marked on a question by question basis.

However I can see reasons why the Board would not want to release exam scripts. It is time and money consuming. Even if the process is automated it still costs money and some time. For this I would accept why the Board would charge a reasonable fee for giving you your scripts.

The Board of Studies is doing the right thing here, they did allow my FOI request so I cannot argue that they are hiding them. Kudos to them for this. I hope two things to happen now, more people become aware that they can get their scripts, and the Board continuing to allow these requests.

Tags: board of studies nsw, education, hsc, law.
17th January 2009

I see two ways (they can even be combined so that both methods are used) to allowing use or granting rights to a copyrighted work. Those two being licensing the work with a copyright license when the work is published, and/or opting for "All rights reserved." and granting rights on a case by case basis when contacted.

Let's say an organisation uses the latter method for licensing a work. If you were an individual who wanted to use say a small portion for non-commercial purposes then that organisation may for instance grant you those usage rights for free. But if you were a commercial company who wanted to use the work say as part of a commercial feature film the organisation may for instance charge a fee for the usage rights. This is the approach that anyone who wanted to use a copyrighted work which does not have a license would need to take (or if the license does not meet their needs).

I oppose this approach for several reasons,

• What if the original copyright was vested in a company that goes out of business. The work becomes an orphan work. (I'm not exactly sure what provisions in the laws allow for this though) A license allows these decisions that the organisation once made to continue to be made.
• It leaves all discrimination transparent to the public and hence more reachable to the Anti-Discrimination Act. For example the latter effective allows an organisation to grant rights to say a girls school to exhibit a film to its students for free but may demand a similar boys school to pay. This kind of discrimination would be difficult to notice. However with the former approach of a license at creation time it is clear from the license what can and cannot be done and by who.

Sure I can see why a company, organisation or individual would want to do it, because it gives them more control over how their work is used, and the latter method is probably better suited where the copyright owner would charge money for any use. I personally haven't used the latter approach, though I do favour the former more.

24th December 2008

In the past month or two I've been watching and listening some of Lawrence Lessig's presentations and I've got his books on my reading list. I could do a lot of blogging on those topics but I wanted to focus on one particular thing. As I was reading Code v2 it lead me to think about a copyright issue that is close to me. It deals with the fact that the Board of Studies NSW, a government organisation copyrights (with a very restrictive license) its syllabi. These syllabi document what students should learn as part of their secondary state education HSC courses. These syllabi are material that students use as part of their study.

For the purposes of review here is the license that the syllabi are provided under,

"© 2002 Copyright Board of Studies NSW for and on behalf of the Crown in right of the State of New South Wales. This document contains Material prepared by the Board of Studies NSW for and on behalf of the State of New South Wales. The Material is protected by Crown copyright. All rights reserved. No part of the Material may be reproduced in Australia or in any other country by any process, electronic or otherwise, in any material form or transmitted to any other person or stored electronically in any form without the prior written permission of the Board of Studies NSW, except as permitted by the Copyright Act 1968. School students in NSW and teachers in schools in NSW may copy reasonable portions of the Material for the purposes of bona fide research or study. Teachers in schools in NSW may make multiple copies, where appropriate, of sections of the HSC papers for classroom use under the provisions of the school's Copyright Agency Limited (CAL) licence. When you access the Material you agree:
• to use the Material for information purposes only
• to reproduce a single copy for personal bona fide study use only and not to reproduce any major extract or the entire Material without the prior permission of the Board of Studies NSW
• to acknowledge that the Material is provided by the Board of Studies NSW
• not to make any charge for providing the Material or any part of the Material to another person or in any way make commercial use of the Material without the prior written consent of the Board of Studies NSW and payment of the appropriate copyright fee
• not to modify the Material or any part of the Material without the express prior written permission of the Board of Studies NSW."
Board of Studies NSW

In my opinion this is absurd! This is depriving students access of material that they require for their studies. This is not a private education institution, this is a government public education system. Students need to know what to study, this document tells students what to study, and as this document is not distributed to students (as in students are not provided a hard copy) the only way they can access it is to copy it, but apparently this is illegal!

The above license does give some rights to school students in NSW ("School students in NSW and teachers in schools in NSW may copy reasonable portions of the Material for the purposes of bona fide research or study."), but why only school students in NSW, what about publishers who are providing material to help students in their studies (for example an annotated copy)? Also why limit the amount students can copy to "reasonable portions"? So basically students cannot make whole copies of this document to aid in their studies!

Also why can't anyone remix the document adding their own annotations or commentary and then publish this? And why only for "personal" use? What if I want to provide a remixed copy to anyone who wants it? If the Board is worried that someone may change the document then republish it and someone mistakes this as an official version, then they should not worry. People are not stupid they know that if they want to ensure the reliability of the document they will go to the source. This is not a valid reason for refusing copying of the document.

These documents should be licensed more freely. They should be in-near public domain allowing anyone to do whatever they want with it. I say "near public domain" because I can understand the Board wanting attribution. But apart from that I don't see any other legal constraint that needs to be placed on these documents. Board of Studies, please consider a license such as the Creative Commons Attribution-Share Alike 2.5 Australia License.

I welcome comments on this matter.