QUT Digital Repository: http://eprints.qut.edu.au/ (2008) Legal Framework for E-Research: Realising the Potential, Fitzgerald, Brian F., Eds. Sydney University Press. © Copyright 2008 Sydney University Press (Collection) / Individual authors (Papers) This work (with the exception of Chapter 2: The Fifth Dimension and Chapter 9: NIH Data and Resource Sharing, Data Release and Intellectual Property Policies for Genomics Community Resource Projects) is licensed under an Australian Creative Commons 'By Attribution', 'Non Commercial', 'No Derivative Works.' 2.5 Licence <http://creativecommons.org/licenses/by-nc-nd/2.5/au/>. See http://creativecommons.org.au/licences for more details. Chapter 2: The Fifth Dimension Licence Information Where copyright subsists in this chapter, which is a United States Government Work under s 105 of the U.S. Copyright Act, the work is licensed under a United States Creative Commons 'By Attribution' 3.0 License <http://creativecommons.org/licenses/by/3.0/us/>. Chapter 9: NIH Data and Resource Sharing, Data Release and Intellectual Property Policies for Genomics Community Resource Projects Licence Information Where copyright subsists in this chapter, which is a United States Government Work under s 105 of the U.S. Copyright Act, the work is licensed under a United States Creative Commons 'By Attribution' 3.0 License <http://creativecommons.org/licenses/by/3.0/us/>. LEGAL FRAMEWORK FOR e-RESEARCH: REALISING THE POTENTIAL EDITED BY BRIAN FITZGERALD BA (Griff), LLB (Hons) (QUT), BCL (Oxon), LLM (Harv), PhD (Griff) Professor of Intellectual Property Law and Innovation (QUT Faculty of Law), Project Leader of the Legal Framework for e-Research Project Barrister, Supreme Court of Queensland and High Court of Australia SYDNEY UNIVERSITY PRESS Published by Sydney University Press University of Sydney NSW, 2006 Australia www.sup.usyd.edu.au Publication date: August 2008 © Copyright individual authors, 2008 © Sydney University Press 2008 The material in this publication is based on papers presented at the Legal Framework for e-Research International Congress convened by the Queensland University of Technology (http://www.qut.edu.au) at the Gold Coast, Australia, July 2007. This publication is an output of the Australian Government Department of Education, Employment and Workplace Relations (DEEWR) funded Legal Framework for e- Research Project led by Professor Brian Fitzgerald and based at the Queensland University of Technology. Licence information This work (with the exception of Chapter 2: The Fifth Dimension and Chapter 9: NIH Data and Resource Sharing, Data Release and Intellectual Property Policies for Genomics Community Resource Projects) is licensed under an Australian Creative Commons 'By Attribution', 'Non Commercial', 'No Derivative Works.' 2.5 Licence <http://creativecommons.org/licenses/by-nc-nd/2.5/au/>. See http://creativecommons.org.au/licences for more details. Chapter 2: The Fifth Dimension Licence Information Where copyright subsists in this chapter, which is a United States Government Work under s 105 of the U.S. Copyright Act, the work is licensed under a United States Creative Commons 'By Attribution' 3.0 License <http://creativecommons.org/licenses/by/3.0/us/>. Chapter 9: NIH Data and Resource Sharing, Data Release and Intellectual Property Policies for Genomics Community Resource Projects Licence Information Where copyright subsists in this chapter, which is a United States Government Work under s 105 of the U.S. Copyright Act, the work is licensed under a United States Creative Commons 'By Attribution' 3.0 License <http://creativecommons.org/licenses/by/3.0/us/>. ISBN 978-1920898-93-9 pbk ISBN 978-1-920899-16-5 hbk The digital version of this book is also available electronically through the Sydney eScholarship Repository (http://ses.library.usyd.edu.au) and The Queensland University of Technology ePrints Repository at: (http://eprints.qut.edu.au). iii PREFACE This book is the product of a conference that I convened at the Gold Coast Australia on the 11th and 12th of July 2007, titled Legal Framework for e-Research.1 The conference was undertaken as part of the research program of the Legal Framework for e-Research Project. The conference, the project and this book have been made possible with the support and sponsorship of the federal Department of Education Science and Training (DEST) which since 2008 has been restructured into the new departments of Education, Employment and Workplace Relations (DEEWR) and Innovation, Industry, Science and Research (DIISR). In the process of running the conference and preparing this book for publication I am thankful for the tremendous support of Dr Evan Arthur, Margot Bell and Clare McLaughlin from DEST, Professor Tom Cochrane DVC QUT, Dr Terry Cutler (Cutler & Co.), Dr Mary O’Kane (O’Kane & Associates), Dr Fiona Stanley (Telethon Institute for Child Health), Dr Chris Greer (NSF), Claire Driscoll (NIH), Dr Richard Jefferson (CAMBIA), Dr Michael Spence Vice Chancellor University of Sydney, Professor John Unsworth (UIUC), Fred Friend (JISC), Steve Matheson (ABS), Paul Uhlir (National Academies) John Wilbanks (Science Commons), Professor Mark Perry (UWO), Dr Amanda McBratney and Malcolm McBratney (McCullough Robertson Lawyers), James Casey (UIDP), Adam Liberman (CSIRO), Andrew Hayne (OPC), David Ruschena (Health Legal), Professor Bernard Pailthorpe (UQ), Philip Crisp (AGS), Maree Heffernan (Qld Government), Professor Paul David (Stanford), the distinguished speakers and participants who attended the conference, my team at QUT, including Professor Anne Fitzgerald, Scott Kiel-Chisholm, Nic Suzor, Damien O’Brien, Kylie Pappalardo, Tanya Butkovsky, Amy Barker, Dr Annie Connell and Anthony Austin and the people at Sydney University Press especially Susan Murray-Smith and Ross Coleman. 1 For the full program see: <http://www.eresearch.law.qut.edu.au/conference> iv In particular I would like to acknowledge the work of my research assistant on this project, Celeste Bennett, who has done an excellent job on the chapters in this book. The Gold Coast conference was followed by the Australian National Summit on Open Access to Public Sector Information2 held at the Queensland Parliament House on the 13th of July 2007. Dr Cutler’s paper in this book is drawn from that event. This book aims to document the considerable insights and ideas that were offered at the Gold Coast conference. The majority of the papers in the book have been prepared as full academic papers (a number already published elsewhere) while others are shorter conference style papers with one being derived from a transcript of the proceedings. The Legal Framework for e-Research project is based at QUT and aims to enhance the enormous potential of e-Research by ensuring law can work as an enabler in this fast paced, networked and serendipitous environment. It grew out of a CODATA conference I attended at UNESCO in Paris in 2004 – International Workshop on the Information Commons for e-Science3 – and my realisation that we were not doing enough in this area in Australia. The project is due for completion in late 2008 and can only be seen as a precursor to the further work that will be done in this area. A national survey of attitudes and practices, the Gold Coast conference, a report on the legal framework for data management, this book and a high level international roundtable on negotiating and concluding collaborative research agreements held at QUT in June 2008 are major outputs of this project so far.4 2 For the full program see: http://datasmart.oesr.qld.gov.au/Events/datasmart.nsf/0/D2D95818B020049F4A25732C000 6EE9A/$FILE/Australian%20National%20Summit%20On%20Open%20Access%20Program .pdf?openelement For the Conference Report see: <http://www.qsic.qld.gov.au/QSIC/QSIC.nsf/0/D6C8E0616BC7FB414A2573B7000C42E5 /$FILE/Conference%20Report%20%20National%20Summit%20Open%20Access.pdf?opene lement> 3 See generally: <http://portal.unesco.org/es/ev.php- URL_ID=28723&URL_DO=DO_TOPIC&URL_SECTION=201.html> 4 See generally: <http://www.eresearch.law.qut.edu.au> v I hope you enjoy reading the material in this book and that it provides you with a framework for understanding key legal issues in the e- Research landscape. Professor Brian Fitzgerald Professor of Intellectual Property and Innovation QUT Law Faculty Project Leader Legal Framework for e-Research Project www.eresearch.law.qut.edu.au Brisbane, June 30 2008 vi FOREWORD The law famously trails behind the social and economic changes in human society which it is supposed to regulate. In a time of such rapid change as we have in the early 21st Century, efforts to reduce some of the undesirable outcomes of this lagging characteristic are to be commended, most particularly when those efforts are directed at improvements which are designed to support greater access to knowledge and the sharing of information in and among communities with increasingly complex problems requiring ever more urgent solution. It is a commonplace to claim that intellectual property laws are arcane. Nowhere is this more ably demonstrated than in the convoluted attempts to reform copyright law across a range of jurisdictions in the last decade. Australia is no small example, with amendments to the Copyright Act 1968 in 2000 designed to address the requirements of the digital environment, followed by a range of other changes including the significant realignment of Australian copyright law with that of the domestic United States’ legal environment brought about as a result of the Australia-United States Free Trade Agreement (2004). The failure of the law to keep pace with the real and dynamic changes in the virtual environments in which our educators, researchers, and citizens generally find themselves is understandable, as new ways of doing things arrive so quickly that it takes time for society at large to adequately comprehend and understand them. And, no sooner than one set of conditions has been understood, there arrive new and sometimes contradictory developments which demand a rethink of any regulatory creativity that might be based on the previous set of conditions.