1. The value of Australia’s copyright public domain

1.1 Introduction: What do these innovations have in common?

A set of examples follow. They all involve valuable contributions to Australian innovation in the area of information goods. They all involve copyright works in which various parties have continuing proprietary (copyright) interests. But they also involve the public (or classes of the public) having rights to use those works in ways that involve some of the exclusive rights of the copyright owner. In this article, as discussed in Part 2, I use the expression “public domain” in the expansive sense of encompassing all “public rights” in copyright. “Public rights” are all those aspects of copyright law and practice that are important in determining the ability of the public (or a significant class of the public) to use works without obtaining a licence on terms set (and changeable) by the copyright owner.

The Creative Commons slogan “Some Rights Reserved” sums up rather well the way in which the intellectual goods in the following examples combine proprietary and non-proprietary elements. However, most of the examples of what I will call “the public domain” do not involve the use of Creative Commons licences.

The theme of this article is what these examples have in common, how Australia’s copyright law and the institutions that support innovation have paid insufficient attention to what they have in common, and how – in Australia at least – we need to have a law reform review that will have these common elements (the copyright “public domain”) as its focus.

After introducing these examples, I give some further consideration to the terms “public domain” and “public rights” (Part 2), and consider how the public domain in any particular country comprises both “global” and “national” elements (Part 3), with examples of what makes Australia’s public domain distinctive (Part 4). In the second half of the article (Parts 5-13) I consider in detail eight main aspects of how a holistic approach to Australia’s copyright public domain suggests areas in need of reform, and some of the interconnections between them. From this I conclude (Part 14) that there needs to be a law reform review of Australia’s copyright law with the public rights / the public domain as its focus.

1.2 Examples from Down Under

Australians continue to make very substantial contributions to the development of open source software and thus to the Internet’s global infrastructure. Contributions to the Linux kernel have included the port of Linux to the PowerPC architecture (largely done in Canberra); the work to put Linux on Cell processors; and contributions to the Sparc processor work. Australians hold senior positions in overall Linux development, and in subsystem maintenance. Australian work on Linux networking is the basis for many companies building firewall appliances, smart routers etc. The Samba re-implementation of the SMB/CIFS networking protocol,1 initially developed at the Australian National University, has been the basis on which various companies have built their businesses. The file transfer utility rsync2 has similar antecedents. Other major contributions include the pppd dameon used by a significant proportion of ADSL home routers; the radiud authentication server used by many ISPs; the SSL library which is the cryptography engine used by much e-business (developed in Queensland); contributors to the Firefox browser; gcc use in the embedded computing market; and much development of the Gnome and KDE Linux desktop environments which are becoming increasingly important.3

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