Historical material
Please note: This section of the website details activities prior to TVET Australia Limited assuming management of the AEShareNet licensing system.
Multimedia Licensing in AEShareNet
Purpose
This paper discusses the nature of content licensing for multimedia products and the way in which that need might be accommodated within the licence regimes provided under AEShareNet.
Briefly, the paper concludes that multimedia licensing can be accommodated within the current proposed licence regimes, particularly AEShareNet-C. However, there may need to be some additional flexibility in the way in which the AEShareNet-C licence operates. The additional flexibility is probably desirable in any case and will increase the proportion of occasions when licences can be transacted through AEShareNet.
Definitions and Distinctions
The term "multimedia" nowadays typically refers to a CD-ROM product. The CD-ROM format may carry text, clipart, photographs, animation, sound recordings, and clips containing full motion video. These are structured and interrelated by a layer of indexing and "look and feel" elements, usually prepared by the use of a multimedia authoring language or development toolkit such as Delphi, or Macromedia Director.
The term "content" refers to the informational or entertainment content carried on the product, but would exclude any "runtime" components of the development software and the application software containing the indexes, screens, etc.
Multimedia may also refer to a website with similar functionality to the above.
Sometimes a CD-ROM product is distributed together with an entitlement to access updates available on-line, ie effectively a hybrid CD-ROM/Web-based platform is used.
The term "platform" is sometimes used to denote the format, ie: CD-ROM, web-based or hybrid.
A typical multimedia product may contain thousands of content items. Where these must be sourced from third party content providers the procuring of content licences becomes a major issue. It may take a substantial period to complete all licence negotiations and fees may consume a substantial part of the budget.
A multimedia product may contain
- training, courseware and/or reference material;
- so-called "infotainment": electronic books and/or games; or
- advertising or promotional products or services, electronic brochures, presentations for product launches, CD-ROM catalogues, etc.
Copyright issues may arise at several points in the development of a multimedia product:
- at creation of prototype or "proof of concept" - ie, corresponds to "Use" as defined in AEShareNet - see Economic Rights & AEShareNet;
- production and distribution of the finished product - ie, corresponds to "Exploitation" as defined in AEShareNet;
- customer use of the product - ie, corresponds to "sub-licensing" as defined in AEShareNet.
Terms of Multimedia Licensing
I have examined useful websites and reviewed the literature on current multimedia licennsing practices. In particular I examined a Discussion Paper: Licensing Content for Multimedia prepared by the Australian Copyright Council in December 1997 and I have discussed some issues arising from that paper with the ACC. I have also examined the standard multimedia licence form preferred by the Australian Multimedia Enterprise, but this should be construed in the light that its terms are naturally disposed towards the interests of the producer.
In the ACC survey some respondents reported that the difficulties licensing in content were such they had largely given up and preferred to rely on content created in-house.
Licence terms negotiated in practice vary as to:
- whether rights are acquired by assignment or licence [assignment is not likely to be relevant to AEShareNet];
- territory: the ACC study and others have noted that the economics of CD-ROM production are such that costs may only be recovered where the product is marketed internationally.
- platform via which the multimedia product may be exploited;
- proposed product, and customer market to be exploited;
- duration: typically 3-5 years. Licence periods for the Internet platform are typically shorter than for distribution via a hard carrier such as CD-ROM;
- payments for use of content may include various royalty arrangements and flat fees, and in some cases the grant of equity in the product;
- attribution: ACC reports there is a relatively well-established practice of attribution for creative contributors to a project;
- integrity: there is less consistency in practice; some contracts do not include clauses dealing with this issue. The AME standard contract allows the licensee an almost completely free hand to alter the input work;
As it happens most of these are matters that are dealt with as parameters or variables under the proposed AEShareNet-C licence. I will return to this point below.
In the simpler cases, licensing of content may occur under the other (royalty free) regimes. For example:
- AEShareNet-U is a largely unrestricted licence regime; any material so classed could be used and amended for inclusion in any type of multimedia platform, by anybody, anywhere in the world. Presumably low value, non-critical text and some pictorial material would be most likely to be labelled "AEShareNet-U";
- AEShareNet-P would allow unaltered use of material, by AEShareNet members only, in multimedia products marketed by them, anywhere in the world. Again it is likely that the material available this way would be largely text-based, rather than sound or full motion video;
- AEShareNet-S would allow some alteration of the input material, and use in multimedia products marketed by AEShareNet members, but only in Australia and/or New Zealand. This last limitation may not always be acceptable in the case of a CD-ROM which is designed to be distributed for profit. In case of an Internet platform the only necessity is that the file server would need to be in Australia.
One of the differences (not identified by ACC) about multimedia content licensing is that the sub-licensing issue may be critical. A multimedia product (whether CD-ROM or Internet based) always entails that the end-user will exercise some copyright rights. Accessing a web-site always entails downloading a copy to the client browser, and often involves taking a printout for (at least) in house use. Using a CD-ROM usually entails the making of a ephemeral copy of the material accessed in screen RAM, and more extensive acts of copyright may occur if the CD-ROM is made available within an organisation on a networked basis.
It appears the industry practice frequently is to skate over the issue of sub-licensing. It is dealt with obliquely sometimes by stipulating the platform and including over details of the proposed product and market, from which the nature of end-user rights may be deduced. The AME form gives the producer virtual carte blanche by stating that the "licence includes the right to grant sub-licences to the extent required to enable the Producer to exploit the Rights in or to the Licensed Property".
The definition of "Exploitation" relevant to all AEShareNet licences allows limited end-user actions, which are viewed as a natural extension of the permitted Exploitation. - see Economic Rights & AEShareNet.
However this may not be enough in all cases and the AEShareNet-C licence allows greater flexibility to define the scope of permited sub-licensing and to relate that to the type of platform, the market reached and royalty rates, etc.
Refer to AEShareNet-C Profile for the licence particulars for AEShareNet-C Licence Profile. The variable fields allow the necessary flexibility for (even relatively complex) multimedia licensing. The fields where variable information may be entered are shaded.
AEShareNet-C acknowledges that it may not be possible in every case for the Licensor to lay down in advance all the conditions for licensing, ie to put the Licensee in a position immediately to accept the Licence. The Licensor may wish to view details of the Licensee’s proposed product, and to assess in particular the market and end-user rights necessary, before agreeing, or before setting a royalty rate for the Licensee to agree. The parties would however use the AEShareNet-C profile as the template for exchanging proposals and counter-proposals, via the AEShareNet site. The site would track and highlight variations in the negotiable fields, generation by generation. Other fields would be secured against alteration.
Summary of AEShareNet Modes
In summary:
- AEShareNet-U would always operate under an Immediate Licensing model, ie. the Licensor marks the material and all the world may exercise the licence without reference back to AEShareNet or the Licensor.
- AEShareNet-P and AEShareNet-S would operate under a Mediated (Registration and Acceptance) model, ie. the Licensor Registers the licence at the AEShareNetwebsite and Marks the material so as to link to the registration. These actions indicate all the conditions of licensing and therefore constitute an offer to all AEShareNet Members. Any Member may Accept the offer by visiting the registration data at the website and posting an Acceptance, which is recorded by the system and notified to the Licensor.
- AEShareNet-C would operate under what might be called an Extended Mediation model, ie. the Licensor Registers the licence at the AEShareNet website and Marks the material so as to link to the registration. In this case the registration process would entail completion of variable fields in the Licence Profile. Any AEShareNet Member may visit the registration data at the website to view the Licence coinditions. In some cases it would be possible to accept immediately. In others it would be necessary to complete details of the multimedia product and/or substitute counter-proposals which are electronically posted to the Licensor. The process continues, under the system’s mediation, until a completed proposal is accepted without alteration.