Open Content Licencing 2005

We're on to the last panel session of the conference now - a summary panel with Larry Lessig, Stuart Cunningham, and Sal Humphreys as well as conference host Brian Fitzgerald. Larry starts by pointing out that what's happening in the computer games field is real, it's common, and traditional property owners have exactly the wrong intuitions in dealing with it. For one, there is a significant monetary value being generated in the online environment (there is even a story of sweatshops in Mexico developing gaming assets and selling them profitably on eBay). It is also a very common activity - and one which is a voluntary form of play as work, much along the same lines as free and open source software development.

Responding to the previous presentations, Brian Fitzgerald and Nic Suzor now outline some of the legal issues involved here - games users' rights are governed generally by end-user licence agreements (EULAs), and these go right to the heart of the question here: in buying a game, does one buy a copy of the game, or a licence to use it? This then influences whether players own the content created in their interaction with the game. Indeed, the nature of the EULA may also influence what players are attracted to these games types.

Some legal cases of note here: in Blizzard vs bnetd, a group of players developed a replacement game server system for the Blizzard product Battle.net. While this is reverse engineering and prohibited by the EULA, reverse engineering is seen as a form of free speech by US courts - but this did not sway the courts' decision in favour of the reverse-engineers. An appeal against this decision is currently underway. In an Australian context, any restriction of reverse-engineering appears unlikely to be upheld in court.

John Banks - academic and ACID researcher as well as Auran staff member - is next, talking more about the Trainz experience in particular. He notes that there is a certain amount of accountability of the games publisher towards the game users, stemming from the massive development efforts which the users have made. There is an emergence of new ecologies of production here: of new kinds of distributed organisations and ad-hoc networks. In John Hartley's words, there is a value drift, a blurring of barriers between producers and consumers - a new participatory culture (Henry Jenkins term) is emerging.

The post-lunch sessions of this conference constitute a mini-conference on computer games and the law. It is opened by Greg Lane of the Brisbane-based games developer Auran, responsible for titles such as Dark Reign and Trainz. The computer games industry is significantly large - twice the size of the movie industry, and growing twice as fast. In its multimedia inputs it's also a classic example for creative industries production, which involves massively interdisciplinary inputs into its IP 'asset creation', as Greg puts it. Interestingly, too, games are increasingly involving user co-production or co-creation. This is the case with Trainz, a train simulator which enables its users to produce rolling stock models, physical environments, and action scenarios to be used in the game - and interestingly more content was produced by users for Trainz (which sold some 3-400,000 copies) than for the only competitor project by Microsoft, which sold ten times as much, due to Microsoft's reluctance to engage fully with its users.

The second speaker is Renato Ianella, from the Open Digital Rights Language Iniative. This project focusses on one of the three components of Creative Commons licences (human-, lawyer-, machine-readable): the machine-readable representation of licences. This is linked to digital rights management issues: on a technical level, DRM covers rights information management (RIM: rights holders, royalties, licence management) and technical protection measures (TPM: security, encryption, trust). RIM metadata is usually captured in an XML-based "Rights Expression Language" (REL).

The next session is chaired by Deputy Vice-Chancellor Arun Sharma from QUT. He notes the need to find pathways between commercial and free content - neither can exist simply by itself and both are needed in a fully functional environment. It is therefore important to support the entire continuum of approaches. Further, he also points out that applying creative content or other new licence schemes to new content is one project - but it is also necessary to consider the large amount of existing content and work out whether there are ways to apply such licences retroactively and thereby return older material to circulation.

On the Riverboat:
Liz Ferrier, Sal Humphreys, and Terry CutlerAfter last night's riverboat excursion, the second day at the Open Content Licencing conference has begun now, with a panel chaired by my colleague Stuart Cunningham from CIRAC. The session will deal with the role of open content licencing in government and public institutions. Stuart begins by noting the shift of cultural production from traditional producers to what used to be consumers and are now users (or, in the terminology I've used in my book, produsers). Stuart notes that this shift has various implications for governmental IP regimes and governments' overall engagement with citizens.

The final session for today is opened by economist John Quiggin from the University of Queensland. He notes the increasing importance of the Internet as a focus of innovation, since about 1980 (previously, it was transport which drove innovation). Most of the innovations it brought about, however, were pioneered outside the market sector - they were done in the background of the main economy (think for example of blogs and wikis).

Innovations on networks are naturally non-rival, and excludability (restrictions to people's access) is problematic as exclusion undermines the network itself (as AOL has found - ultimately it was unable to restrict its users from accessing the wider network, and vice versa). Similar exclusions in online newspapers (such as the New York Times Website) are also ultimately counterproductive.

The next session unites some representatives of the creative industries. We begin with Richard Neville, billed here as a futurist and social commentator. He notes that there is a resurgence of creativity in our society today, and that there also needs to be an incentive to create and disseminate - but this incentive must be more than a financial one; it is also based in collaboration and the ability to build on the work on others. In creative eras throughout human history this opportunity for mutual collaboration and inspiration was always present.

Today the large IP holders are stifling such collaboration between creators and reuse of their content - even though many of the creators themselves are actually happy to participate in the sharing of content. There is a significant bifurcation, then, between the creators themselves and the corporations which presume to manage their interests. However, overall, the issue is abut sharing, not stealing content.

Next up we're hearing from the Queensland State Government about their involvement with creative innovation - Tony McGrady, Minister for State Development and Innovation, couldn't make it at the last minute and is therefore represented by his parliamentary secretary Linda Lavarch (who handily also happens to be the wife of QUT Dean of Law, Michael Lavarch).

From her remarks it looks like the State Government did have a major shift in thinking through its involvement with the Creative Commons project. It's already been very supportive of creative innovation and the creative industries, and the creative commons provides another important element in this context. All this is part of its overall Smart State agenda, of course.