Historical material
Please note: This section of the website details activities prior to TVET Australia Limited assuming management of the AEShareNet licensing system.
Change management framework
In a conventional licensing environment, two particular parties execute a formal agreement on each occasion to establish a licence, which commences at a particular time and is delimited by a set of stated terms and conditions.
AEShareNet is a larger, multi-party framework in which a number of parties will govern certain dealings conducted over a period of time. The framework is established when AEShareNet Limited is incorporated, and at the same time the Charter is deemed to be adopted along with an initial set of Licence Protocols. The framework is terminated upon winding up of the Company. In between these two times, the framework accommodates regular transactions and changes - which are of several different kinds, e.g.:
(a) Licensing Transactions (in probable order, except for the last which might occur at a number of points):
- Classification of Material by a Licensor so as to Extend a particular kind of Licence to beneficiaries permitted under the relevant Licence Protocol;
- a prospective Licensee accesses the system and elicits a formal offer of a Licence. For the purpose of Extending the formal offer, AEShareNet Limited (including its programmed systems) acts as agent of the Licensor;
- creation of a Licence;
- a Licence is terminated in accordance with the relevant Licence Protocol;
- a Licence expires normally;
- a Licensor decides to revoke the Classification to some Material, and either to substitute a different Classification or to withdraw the material from AEShareNet entirely. (There is a question as to what might constitute effective removal under AEShareNet-U where Classification is effected by a "Marking" fixed on copies of the Material which may have been distributed);
(b) Changes related to Membership:
- alteration to the Member Profile for a Member, eg where EFTS numbers change, where a Member is re-graded from Net-Licensee (Class C) status to Net-Licensor (Class B) status or where an organisational unit covered by a government Membership is corporatised;
- admission of a new Member, which involves settling of a Member Profile for them;
- assignment of copyright by the copyright owner;
- insolvency, retirement or expulsion of a Member;
Changes to the Framework (ordered with most frequent first, least likely last):
- change to a Licence Regime. This is effected by adoption by a general meeting of a Licence Protocol for the new Version. The previous Licence Protocol is demoted to "cancelled" status; it must still be retained on the system however, because extant Licences recorded in the Licences Database may reference it;
- adoption of an entirely new Licence Regime, by documenting it in a Licence Protocol which is approved by a general meeting;
- amendment of the Charter;
- amendment of the Constitution.
(d) Termination of the Charter:
- this is consequential upon winding up of the Company.
Issues arising
The events enumerated above may occur in various permutations. Accordingly the AEShareNet system requires some clear rules to deal with timing and transitional issues that may arise. In particular, this document discusses what bearing changes in the Framework and Membership have upon:
- the ability to conduct certain transactions, and
- the effect of those transactions.
Pre-conditions for, and sequelae of, the important transaction types are dealt with in turn below.
Analysis
Classification of Material. Preconditions are:
- the AEShareNet Charter remains in force;
- there is a current Licence Protocol for the Referenced Licence Regime;
- the Licensor is a current Member of the AEShareNet Charter, and is entitled to Classify Material under the referenced Licence Regime (at present all proposed Licence Regimes are available for use by any Member).
Under the mediated regimes, the AEShareNet system will test the above conditions at the time the Material is Classified, i.e. registered in the Materials Database.
In addition, it is the responsibility of the Licensor (if they are not the copyright owner) to ensure that they are, and remain, entitled to grant any Licences of the kind Extended. If that ceases to be the case they must revoke the Classification (see below).
Eliciting a formal offer
This is relevant to the mediated regimes only.
Preconditions are:
- the AEShareNet Charter remains in force;
- there is a current Licence Protocol for the Referenced Licence Regime. The reference will be associated at this point with the latest ("current") Licence Protocol in force under the Regime;
- the Licensor is still a current Member of the AEShareNet Charter (it is not proposed to re-test at this point whether they are entitled to use the Protocol);
- the Licensee is a current Member of the AEShareNet Charter and is within the permitted Class(es) of beneficiary under the Protocol;
- the Material Registration is current (NB: under Mediated Licensing, the Licensor has the ability to visit the Website and alter or remove the Material Registration at any time).
The AEShareNet system will enforce the above conditions at the time it generates the formal offer as agent of the Licensor.
Creation of a Licence. One function of a Licence Protocol is to define the mechanism by which, and the time at which, a Licence arises, and the period for which it continues. Under the mediated Licence Regimes, licence creation involves a formal acceptance transaction logged by the system. Under AEShareNet-U a licence may be deemed to be transacted by the Licensee's first use of the Material in reliance upon the Licence, ie by exercising the Licence.
For the mediated regimes, the Preconditions for licence creation are:
- the AEShareNet Charter remains in force;
- the Licence Protocol (determined as above) is still current;
- the Licensor is still a current Member of the AEShareNet Charter. (It is not proposed to re-test at this point whether they are entitled to use the Protocol);
- the Licensee is still a current Member of the AEShareNet Charter. (It is not proposed to re-test whether the Licensee is within the permitted Class(es) of beneficiary under the Protocol).
The AEShareNet system will enforce the above conditions at the time it records the licence acceptance.
For AEShareNet-U, the Preconditions for licence creation are:
- the AEShareNet Charter remains in force;
- there is a current Licence Protocol for AEShareNet-U;
- the Licensor is a current Member of the AEShareNet Charter.
As there is no acceptance transaction for AEShareNet-U licences, it will be a matter of evidence as to when the Licence arises, and whether the Preconditions were met at that point. However, if the Licensee chooses to navigate to the Website, the AEShareNet system will verify that the Charter remains in force, associate and display the current AEShareNet-U Licence Protocol and confirm that it is current, and confirm that the Licensor is a current Member.
Continuance of a Licence: For all regimes, once the Preconditions are met and a Licence created, it is unaffected by any subsequent changes to those conditions. Thus the Charter provides (in various provisions) that a Licence continues for its normal duration as a Licence binding the Licensor and Licensee, and is not affected by any of the following changes:
- changes to the Licence Regime under which it was granted, including the Licence Protocol being superseded by a new Version, or cancelled entirely;
- any decision by the Licensor to revoke the Classification of the Material under the Licence Regime;
- the Licensor ceasing to be a current Member of the AEShareNet Charter - see clause 3.4 of the Charter;
- the Licensor otherwise ceasing to be entitled to Classify Material under the referenced Regime (either because of a change in their status or because of a change in the class of permitted Licensor stated in a revised Protocol);
- the Licensee ceasing to be a current Member of the AEShareNet Charter;
- the Licensee otherwise ceasing to be a beneficiary of Licences Extended under the referenced Regime (either because of a change in their status or because of a change in the class of permitted Licensee stated in a revised Protocol);
- any assignment of copyright in the Material. An assignee takes the assignment subject to any extant Licences. It is the responsibility of the Assignor not to give any warranties that deny the existence of such a licence;
- termination of the Charter or winding up of the Company - see clause 3.5 of the Charter.
NB: Some sequelae of licence creation are provided under the Charter and may affect the Company, not just the Licensor and Licensee. Clause 3.4 of the Charter makes clear that where a Member ceases to be a Member they continue to be subject to the provisions of the Charter in respect of matters arising out of the Licence, including the dispute resolution processes and the collection of royalties through the Company.
Termination of a Licence: This may occur by agreement of the parties or as provided under the Licence terms, regardless of any changes to the AEShareNet Framework or Membership.
Normal expiration of a Licence: This occurs at the end of the Licence Duration stated in the Licence terms, regardless of any changes to the AEShareNet Framework or Membership.
Revoking a Classification:
Under Mediated Licensing, the Licensor has the ability to visit the Website and alter or remove the Material Registration at any time. This is effective to "head off" any later attempt by a prospective Licensee to elicit a formal licence offer, but it would not affect any licence-under-negotiation, let alone a Licence that has been transacted.
Under AEShareNet-U, there is no way of revoking the Classification. The Licensor may attempt to control the proliferation of copies bearing the AEShareNet-U Marking.