Please note: This section of the website details activities prior to TVET Australia Limited assuming management of the AEShareNet licensing system.
Why improve AEShareNet Materials?
Under AEShareNet, the 4 licence regimes differ in the extent to which they permit creation of Derivative Materials, the extent of vetting and the provisions made for ownership of copyright in those Derivatives. This applies most notably to Derivatives which fall into the category of "Enhancements".
For full detail on the treatment of Derivatives, see Derivative Works & AEShareNet. However, in summary:
- AEShareNet-U allows Enhancements without vetting, and all copyright in the Enhanced version vests in the Licensee;
- AEShareNet-P does not permit any Enhancements; thus no issues arise regarding vetting or ownership of Enhancements;
- Under AEShareNet-S Enhancements are permitted without vetting; copyright in Enhancements made by a Licensee vest in the Licensor;
- Under AEShareNet-C Enhancements may be permitted by the Licensor and the Licensor may stipulate the level of vetting; copyright in Enhancements made by a Licensee will usually vest in the Licensor.
This document sets out the rationale for consolidating copyright ownership as outlined above (particularly under AEShareNet-S and AEShareNet-C), and asks: what incentive is there for a Licensee to make improvements to the licensed Material if they do not enjoy copyright as a result of their efforts?
AEShareNet favours consolidation of copyright ownership, principally in order to avoid joint ownership arising. Joint ownership has the result, usually, that permission of both (or all) joint owners is needed for any Use, Exploitation or Sub-licensing. AEShareNet seeks to avoid joint ownership, whilst at the same time creating a broader framework for sharing of Materials.
Consolidation of ownership also permits more orderly evolution in Materials and more coherent version identification.
It is important to understand that the term "Enhancement" refers to alterations which cannot meaningfully be separated from the original work. It is defined under AEShareNet to include any modification, contextualisation, adaptation, abridgment or redevelopment incorporating a substantial part of the original Material.
It is therefore unlikely that the "Enhancements" could be Used or Exploited separately from the Licensors base Material, so consolidation of copyright in the hands of the licensor is generally the most rational option.
Treatment of Enhancements
In the case of AEShareNet-U material, copyright ownership is Concurrent. The Licensee is permitted to apply its own copyright notice to the whole Enhancement, even though it incorporates pre-existing Material of the Licensor. The original copyright notice is not required nor is it permitted to be used on the enhanced material.
The position in respect of AEShareNet-S is that copyright in the Enhanced version (including any fresh layer of copyright arising from the Enhancements) is Consolidated under the ownership of the original copyright owner; the original copyright notice and AEShareNet-S marking which appear as part of the material must be retained together with any necessary disclaimer, eg: "Modification not necessarily endorsed by copyright owner".
In AEShareNet-C the Licensor is entitled to vet the Enhanced version - provided they have stipulated this option in the process of registering the AEShareNet-C marking. As a rule, copyright in the Enhancements is also Consolidated into the copyright owners copyright in the original Material. The Licensee would retain the original copyright notice and AEShareNet-C licence marking. They would have a non-exclusive right to exploit that version, just as other AEShareNet Member. As with AEShareNet-S, the Enhanced version should be accompanied by an appropriate disclaimer, eg: "Modification not necessarily endorsed by copyright owner".
In respect of AEShareNet-C, the vetting process provides a point at which the parties may negotiate more convenient ownership arrangements, if both agree. There is nothing to stop the parties making collateral agreements as a condition of varying the default ownership. They may trade ownership of materials: ie party A relinquishes copyright in X; party B relinquishes copyright in Y. Such arrangements in writing would have legal effect under AEShareNet.
The form of copyright notice (including attribution, etc) and AEShareNet Marking to be applied to the Enhancement are set out in each Licence Profile and in the case of AEShareNet-C would also depend on any arrangements made at the time of vetting.
In the case AEShareNet-U, there is a powerful incentive to create Enhancements because the Licensee may then apply their own copyright notice.
In other cases, even though the Licensee may not own copyright in an Enhancement they may still acquire some advantages:
- in general the Material will go back into the AEShareNet system under the same Licence Mark. Thus the Licensee will be entitled, like the Licensor and any other AEShareNet Member, to Use and Exploit the Enhanced version;
- the Licensee may be expected to have a competitive advantage in the Exploitation of the Material simply by virtue of familiarity and lead time;
- in the case of AEShareNet-C, because it is possible to negotiate the form of attribution in the copyright notice, the Derivative Material may incorporate some promotion of the Licensee;
- the Enhancements may be created under public sector grant. The purposes of the Licensor in creating the original Material, and those of the Grantor and Grantee in Enhancing the Material, may not be so different; they may all be served by retaining the Material in the system marked, say, AEShareNet-S, even though copyright vests in the Licensor;
- in other cases the Licensee may be fully funded to create Enhanced Material as part of provision of a service, eg training courses, to a paying customer.
Finally, it should be remembered the licence regimes proposed for AEShareNet are all (so far) non-exclusive. AEShareNet merely furnishes a sensible basis of dealing that all Members can presume on, without need for negotiation. In appropriate cases there is nothing to stop a Licensor and Licensee negotiating some different arrangement for copyright entirely outside the AEShareNet framework.