Economic rights and the AEShareNet licensing system
Overview
This document describes various implications for Licensees and Licensors with regards to the economic rights aspect of copyright. There are two fundamental aspects of copyright - economic rights and moral rights. The economic rights of copyright are those which govern the rights around copying, adaptation, publication, performance and broadcasting of copyrighted works.
Introduction
The Copyright Act 1968 (Cth) protects literary, dramatic, musical and artistic works, and other subject matters, such as a films (or videos), sound recordings, broadcasts and published edition.
Depending on the subject matter, the copyright may include exclusive rights to perform any of the following (or analogous) acts:
- reproduction in a material form [copying];
- publication [this means making the material generally available to the public for the first time];
- erformance in public [note that the delivery of a training course may constitute a performance in public for the purposes of the Act];
- free-to-air broadcasting;
- transmission to subscribers [subscription or pay television];
- adaptation [covers changes to format which might not otherwise be considered as reproductions, such as conversion of a literary work to a comic strip form];
- commercial rental.
References to the "public" refer to the copyright owner's public. For example, in assessing whether a work has been performed in public, a crucial consideration is whether the audience and circumstances are such that the copyright owner would reasonably have expected that performance to be part of their normal commercial market.
Subject to the Act, it is an infringement of copyright to do, or authorise the doing, in Australia of any of these acts without the licence of the copyright owner.
Note that the above description of rights summarises and paraphrases the Act, and there is considerable variation in details applicable to different categories of material. Economic rights may be described and partitioned differently under the copyright laws of other countries, although the totality of those rights may be similar for countries which are parties to the Berne Convention and similar copyright treaties.
Treatment of economic rights
The AEShareNet licences do not differentiate along the same lines as the Australian Act as many of the licence regimes extend to acts done overseas.
In the AEShareNet licensing system, the copyright owner's bundle of rights would be partitioned as follows for the purposes of the various licence regimes:
- Use: refers to all personal or in-house use. It would cover the making of exact copies, the making of other reproductions or adaptations, i.e., Derivative Materials as defined in the AEShareNet licensing system (including enhancements, supplementary works and inclusion in compilations) - but in all cases only for in-house purposes, i.e. , "Use" does not in itself involve any third parties (who might not be AEShareNet Members). All AEShareNet licences allow at least Use by the Licensee.
- Exploitation: covers any act of copyright involving the Licensee's customer, client or other third party, such as distribution of the material or derivative materials, performance in public (such as delivery of a training module in some situations), broadcasting, cable transmission, inclusion of the material at a website and, where relevant, rental. It is irrelevant whether a commercial (or any) fee is charged in connection with the distribution, performance, etc. In general, AEShareNet licence regimes allow Exploitation, as well as Use. Note however that Exploitation does not in itself extend to Sub-licensing third parties to Use or Exploit the material themselves.
- Sub-licensing: refers to the Licensee authorising a third party to themselves perform acts of copyright. In general, sub-licensing is not permitted under AEShareNet licence regimes. It is often not necessary anyway. If the third party is an AEShareNet Member they are directly entitled as potential licensees to Use and Exploit the Licensor's Material. And in most cases Derivative Works will bear the same copyright notice and licence marking. There are three cases where a Licence to Exploit might entail a right to sub-licence as a concomitant of that Exploitation:
- Loading the material to a website. This necessarily entails that some copyright acts will be performed by non-AEShareNet Members. The Licensee can authorise web-users to Use for in-house purposes only, provided no Derivative Materials are created. A suitable form of notice would be: "Non-AEShareNet Members may download, display, print and reproduce this material in unaltered, complete form only (retaining any headers and footers) for personal, non-commercial use or use within their organisation. All other rights are reserved."
- Including the material on a CD-ROM. This also entails that some copyright acts will be performed by non-AEShareNet Members in the normal course of using the CD-ROM. The Licensee is entitled to authorise Use (as defined above) by the end user as necessary for the ordinary use of the CD-ROM, including making the CD-ROM available over an in-house network.
- Distribution of a training module. Where a Licensee sells or distributes copies of material adapted for training purposes, by extension the Licensee may authorise the recipient (a non-AEShareNet Member) to deliver the material as a training course to other non-AEShareNet Members. This does not include general "Use" (as defined above) by the recipient, such as making copies in addition to those purchased. It merely covers delivery. (Permission is necessary because such delivery could amount to a performance in public.)
Licensors have a responsibility to understand these distinctions and to ensure when marking Materials that they own all relevant copyright, or at least have a licence in relation to any constituent materials which is sufficient to cover the Use and Exploitation and further Sub-licensing which the Mark entails. When licensing their copyright in a Compilation, they should take care to mark the material in such a way as to signify clearly the layer of copyright being licensed. In addition they must be aware of the moral rights of authors and rights of performers. Where there is doubt, Licensors should obtain appropriate legal advice.
Relationship to other licensing
All licences created by the proposed AEShareNet licence regimes would be non-exclusive. This means that the Licensor retains the right to licence other AEShareNet Members, or any other person, independently of the AEShareNet licensing system. In addition, statutory licences contained in the Copyright Act 1968 may operate to some extent in parallel with the AEShareNet protocols. The result is that in some situations a Licensee Member of AEShareNet may have a choice as to the legal avenue to obtain access to copyright material.