Cochrane, Tom --- "Foreword" [2008] SydUPLawBk 31; in Fitzgerald, Brian (ed), "Legal Framework for e-Research: Realising the Potential" (Sydney University Press, 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 21^st 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.

But having said this, it is also the case that significant coalitions of interests are able to form a general direction to follow in the advocacy that they pursue with law makers.

One such coalition is that which can be generally described by research and education communities, worldwide. Contradictions and conundrums that have developed in the digital age over access to research outputs (for example, the idea of the expensive, subscription bundle of electronic journals), have met with countervailing influences, policies and developments which are aimed at exploiting new possibilities for the sharing of knowledge. With this general aim, the Open Access movement has developed, which at its simplest merely urges researchers who are not publishing for individual monetary return to release the quality-certified (i.e. peer reviewed) outputs of their research online at the same time as they are submitted for publication in the toll gated journal literature.

At the same time as that movement for greater access has developed, so have we seen innovation in the area of intellectual property and copyright law. This includes the advent of open content licensing, which seeks to address the issue of confusion and limitation surrounding the understand of copyright requirements, by providing the creators of intellectual property with options to express in a positive way rights to use which are otherwise exclusively reserved for the creator. While there is debate about the extended intersection between open content licensing, and open access more generally, both movements, which are global in dimension, have the same end – the greater sharing of knowledge.

The Australian Government through the former Department of Education, Science and Training (DEST) has for some years been pursing investments in Systemic Information Infrastructure (SII) to support in various ways research and access to research in Australia. Informing this has been the evolution of an Accessibility Framework which has been developed to guide the Government’s intention to the see that taxpayer investment in research activities in our institutions is matched by appropriately available public access to the outcomes and outputs of such research.

While these developments have been occurring, the landscape generally described by the term “e-Research”, has also been rapidly evolving. The working definition of e-Research adopted by the Australian Government as it went about its Systemic Infrastructure investment program, and later its National Collaborative Research Infrastructure Strategy (NCRIS) investments, was to define it as encapsulating research activities that use “a spectrum of advanced ICT capabilities” and embrace(s) new research methodologies emerging from increased access to … broadband … networks, research instruments, … software and infrastructure services that enable secure connectivity and application tools that encompass discipline specific tools and interaction tools”.^[1]

Under the Platforms for Collaboration portion of NCRIS, these investments have been further refined into significant heads of activity which have led to the development of a National Computation Initiative, an Australian Research Collaboration Service, and an Australian National Data Service.

At the same time, one of the investments made by the Commonwealth Government in advancing activity under the earlier banner of Systemic Information Infrastructure, was to support an initiative centred at the Queensland University of Technology, known as Open Access to Knowledge, (OAK) which led to further research and a new project – The Legal Framework for e-Research Project – on the challenges and problems that could be envisaged as e-Research activity gathers momentum, not only regionally and nationally, but worldwide.

The recognition that increasingly sophisticated ICT techniques would need to be matched by increasingly sophisticated ways of thinking about some of the legal issues that might arise, particularly given the minefield posed just by conditions relating to the collection and availability of data across a wide number of fields, therefore led to the initiative represented by the contents of this report. We need skilful thinking about the legal context for all of the rapid and new, indeed scarcely definable activities that are mushrooming in this sphere. An early start on this was the July 2007 conference on the topic.

It is my pleasure to commend the papers in this volume for those interested in considering the many interesting challenges posed for researchers, legal specialists and administrators in this area.

Professor Tom Cochrane

Deputy Vice Chancellor of QUT

Chair of the Australian e-Research Infrastructure Council (AeRIC)

Brisbane, 30 June 2008

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^[1] Final Report of the e-Research Coordinating Committee, An Australian e-Research Strategy and Implementation Framework (2006),