[okfn-help] [Fwd: Fwd: Re: Guide to Open Data Licensing - new OAK Law Report on Data]

[Rufus Pollock]

OAK Law have been kind enough to send us information for the Open Data 
Licensing Guide. See below.

~rufus

-------- Original Message --------
Subject: Fwd: Re: Guide to Open Data Licensing - new OAK Law Report on Data
Date: Tue, 10 Jul 2007 14:45:29 +1000 (EST)
From: <obfuscated>

Dear Rufus,

We attach our summary of Australian copyright law in relation to 
databases for inclusion into the Guide to Open Data Licensing in the 
Open Knowledge Foundation Wiki. Please contact us if your have any 
queries regaridng the summary. We would like to be listed as a 
contributor under the Credits heading as "Various authors from the Oak 
law project" with a hyperlink to the Oak law 
project:http://www.oaklaw.qut.edu.au/.

Please let us know when our summary has been included in the Guide.

Yours Faithfully,

Anthony Austin

## Attachement: converted by antiword

Open Knowledge Foundation Wiki - Australia Summary

Copyright in Data under the Australian Copyright Act 1968 (Cth)

Under the Australian Copyright Act 1968 (Cth)[1] ideas  and  information
may be protected when they are expressed in a "material form",  such  as
written down, entered into a computer or stored in some  other  machine-
readable form.  What is protected is not  the  idea  or  information  in
itself, but rather the expression of that idea or information, that  is,
the form in which the idea or  information  is  expressed.   This  means
that raw data,  basic  facts  or  items  of  information  will  not,  in
themselves,  attract  copyright  protection.    However,   where   data,
information or facts have been compiled to  create  a  new  work,  eg  a
dataset or database, that work  may  be  protected  by  copyright  as  a
compilation if it  meets  the  originality  threshold  under  Australian
copyright law.

Compilations are protected in the  literary  works  category,  which  is
defined in s10(1) of the Copyright Act  as  including  "a  table,  or  a
compilation, expressed in words, figures or  symbols".   Data,  metadata
or a compilation of numerous items of data or metadata  records  may  be
protected  by  copyright  if  the  compilation  meets  the   originality
threshold required for copyright.  Any underlying database software  may
also be protected by copyright as a literary work.   The  definition  of
"literary work" in s 10(1) of the Copyright  Act  includes  "a  computer
program or a compilation of computer programs".

Compilations - Desktop v. Telstra

In  Desktop  Marketing  Systems  Pty  Ltd  v  Telstra  Corporation   Ltd
(2002),[2] the leading Australian case in this area,  the  Full  Federal
Court considered whether Telstra had copyright in its Yellow  Pages  and
White Pages directories containing names, addresses  and  phone  numbers
of telephone subscribers in  a  given  region,  listed  in  alphabetical
order.   Telstra  had  undertaken  substantial   labour   and   incurred
substantial expense in compiling and listing the subscriber  entries  in
its White and Yellow Pages directories.

The court held that copyright can be claimed in a compilation which -

     . has been produced as a result of the exercise of skill,  judgment
       or knowledge in the selection, presentation or arrangement of the
       materials; or

     . has required the investment of a substantial amount of labour  or
       expense to generate or collect the material included in  it  (the
       so-called "sweat of the brow" approach).[3]

The  court  held  that  Telstra  had  met  the  originality   threshold,
notwithstanding that there may have been minimal intellectual  input  or
creativity in the selection and  arrangement  of  the  material  in  the
telephone directories.

The decision in Desktop Marketing Systems Pty Ltd v Telstra  Corporation
Ltd makes it clear that, in Australia,  a  compilation  of  data,  eg  a
database,  may  be  protected  by  copyright  provided  that  either   a
sufficient amount of labour or expense  has  gone  into  collecting  the
data or a sufficient degree of skill, judgment  or  knowledge  has  been
applied in selecting and organising the data.

The test described by  the  Full  Federal  Court  in  Desktop  Marketing
Systems Pty Ltd v Telstra Corporation Ltd sets  a  lower  threshold  for
originality than that required in the United States.  In Australia,  the
originality test does  not  require  any  degree  of  creativity  to  be
applied in creating the work, with the  result  that  a  purely  factual
compilation is more  likely  to  qualify  for  copyright  protection  in
Australia than in the United States.


Assigning and licensing copyright in datasets and databases - further
considerations

Owners of copyright in datasets and databases  may  fully  or  partially
assign their copyright or license  another  party  to  use  it.   To  be
legally effective, assignments must be (1) in writing,  and  (2)  signed
by or on behalf of the  assignor.   Licences  need  not  be  in  writing
unless the licence being  granted  is  an  exclusive  one.     Copyright
datasets and databases can be  licensed  under  a  creative  commons  or
other similar open content copyright licence.

For further  information  on  Australian  copyright  law  applicable  to
databases, the licensing of data and issues of open access to data see:

     . The Oak Law Project Report No. 1: Creating a Legal  Framework  for
       Copyright Management of Open Access within the Australian Academic
       and Research Sector, August  2006,  Elect  Printing,  Canberra  at
       <http://eprints.qut.edu.au/archive/00007306/01/Printed_Oak_Law_Proj
       ect_Report_No_1.pdf>;
     . The Oak Law Project and the Legal framework for e-Research Project
       Report: Building the Infrastructure for Data Access and  Reuse  in
       Collaborative Research: An Analysis of  the  Legal  Context,  June
       2007,
       Elect Printing, Canberra
       at
       http://www.oaklaw.qut.edu.au/files/Data_Report_final_web.pdf;

     . The Queensland Spatial Information  Council's  Report:  Government
       Information  and  Open  Content  Licensing:  An  Access  and   Use
       Strategy,  October 2006,
       at
       <http://www.qsic.qld.gov.au/qsic/QSIC.nsf/CPByUNID/BFDC06236FADB681
       4A25727B0013C7EE>;

     . Chapter 4 - Copyright, in "Intellectual Property:  in  Principle",
       Anne Fitzgerald and Brian Fitzgerald, Thomson, Sydney, 2004; and

     .  Chapter  4  -  Copyright,  in  "Internet  and   e-commerce   law:
       technology, law and policy" Brian, Fitzgerald, Anne Fitzgerald  et
       al, Thomson, Sydney, 2007.
-----------------------
[1] See the Copyright Act 1968 on the ComLaw.web site:
<http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/2F9AC
A8288B4A995CA2573010080C079/$file/Copyright1968.doc>.
[2] Desktop Marketing Systems Pty Ltd v Telstra Corporation  Ltd  [2002]
FCAFC 112, Full Court of the Federal Court of Australia,  Chief  Justice
Black and Justices Lindgren and Sackville, at
<http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/112.html>.  The  Full
Federal  Court  affirmed  the  first  instance   decision   in   Telstra
Corporation Ltd v Desktop Marketing  Systems  [2001]  FCA  612,  Justice
Finkelstein,  at
<http://www.austlii.edu.au//cgi-
bin/disp.pl/au/cases/cth/federal_ct/2001/612.html?query=desktop%20market
ing%20systems>
See  further  Brian  Fitzgerald   and   Cheranne   Bartlett,   'Database
Protection under Australian Copyright  Law:  Desktop  Marketing  Systems
Pty Ltd v Telstra Corporation [2002] FCAFC 112' (2003) 7 Southern  Cross
University Law Review 308
[3] Desktop Marketing Systems Pty Ltd v Telstra Corporation [2002]
FCAFC 112, [409].