The Copyright Agency Ltd, in all its “wisdom,” has published what it terms a “non-exclusive, non-transferable licence” for content from Fairfax Media, Bauer Media, News Corporation, West Australian Newspapers, Elliot Newspaper Group, Pacific Magazines, Torch Publishing and Border Watch Pty Ltd.

Acting as an agent for these publishers, CAL has created what it describes as a “free open licence” for newspaper content.

But how free and open is CAL’s “free and open” licence, really? Well, according to CAL’s licence, you can quote 20 words from any of the aforementioned outlets’ publications, as long as it’s not for advertising or commercial gain, for media monitoring or analysis, or in a publicly available publication.

So basically, if you’re a content aggregator getting paid for scraping social media or a journalist, you’re instantly in breach of CAL’s licence if you quote those outlets at all.

The licence grants permission to tweet or post the headlines from up to any five articles from those listed outlets in your personal blog, with a link back to the publisher — just so long as you’re not making money off it.

Advertising on your blog or running a crowdfunder online to fund yourself? A breach of CAL’s licence again.

According to CAL’s licence, you can also reproduce up to five articles from the outlet’s listed in CAL’s licence from any single edition in a family history book — so long as the book isn’t commercially available.

The licence doesn’t apply to the use of pictures, graphic designs and illustrations accompanying articles — according to CAL, for that you have to negotiate a separate licence.

Which doesn’t seem very free and open at all, to be honest.

Ellen Broad, associate of the Open Data Institute Australia Network, points out “’open” is a technical term. “An ‘open’ licence is one which allows someone to access, use, modify and share content, data, code for any purpose — commercial or non-commercial. This is a distortion of what ‘open’ means.”

According to Open Knowledge International, “open means anyone can freely access, use, modify, and share for any purpose (subject, at most, to requirements that preserve provenance and openness)”. 

“Open data and content can be freely used, modified, and shared by anyone for any purpose.”

Basically, an open licence gives people permission to access, reuse and redistribute content with little or no limits. But CAL’s licence sets up numerous limitations.

Indeed, CAL’s licence does not appear to meet the definition of an “open licence” as per international standards set by Open Knowledge International, which defines an open licence as a licence that doesn’t restrict any party from “selling or giving away the work either on its own or as part of a package made from works from many different sources”.

So, should you bother worrying about CAL’s licence if you’re a journalist, media monitor or content aggregator, a blogger or a family historian?

“You do not need permission to quote headlines or post links to news articles”, says associate professor Nicolas Suzor from the QUT School of Law. “This is a disingenuous attempt to impose restrictions on how people talk about news.”

Associate professor Rebecca Giblin from the Monash University Law Faculty wryly suggests CAL’s licence is “a bit like coming home to find a squatter in residence, who then generously says you can stay as well. In some key regards, the licence is purporting to grant the public permission to do what they are already entitled to do.”

The licence also raises the questions: how does CAL plan to enforce their license? Police the entire internet?

It’s almost as if Australia needs fair use laws — which by the way, became law in 1978 in the United States of America. As the Australian Law Reform Commission points out, “fair use is not a radical exception. It largely codifies the common law.”

Of course, CAL doesn’t support enshrining fair use into law at this time.

So, where to from here?

Perhaps it would just be easier to simply ignore content from the outlets that signed up to CAL’s licence, and avoid quoting, retweeting, reposting, blogging about and sharing their content at all.