Dispute resolution
Disputes in relation to copyright and licensing are common
There are various aspects of the AEShareNet licensing system which could give rise to disputes between Members and also between Members and non-Members. These might include disputes relating to copyright ownership, or whether a Licensee had exceeded the terms of the Licence granted to them. Disputes might also arise in respect of fees and charges levied, or between Member in relation to compliance with the terms or assignment under the licence. A dispute could also arise between the Company and another person.
A typical dispute between a Licensor and Licensee might concern the treatment of derivative material under, for example, AEShareNet-S. The Licensor may claim copyright on the basis that the derivative is an Enhancement; the Licensee might contest this, asserting that the derivative is Supplementary Material.
Because such matters rest on a case by case determination, we provide alternative dispute resolution ('ADR') procedures to ensure that participants can avoid litigation. ADR processes can be quicker, cheaper and afford more opportunity for a conciliatory approach.
Why have alternative dispute resolution?
Alternative dispute resolution usually involves mediation or arbitration and the parties usually agree to be bound by the decisions made.
Mediation services can be obtained by independent dispute resolution service providers such as the various Law Societies, or the Australian Commercial Disputes Resolution Centre.
Mediation typically takes place in two phases: a preliminary conference and then a mediation conference. The purpose of the preliminary conference is to explain the features of the mediation process; to sign the Agreement to Mediate and to determine the preliminary steps to be undertaken prior to the mediation conference; and to set a timetable for the completion of these steps prior to the mediation session.
In a typical mediation conference, parties have an opportunity to give a brief opening statement outlining their individual concerns and issues. The mediator then encourages the parties to communicate directly with each other to enable them to clarify their positions and to gain an understanding from hearing the other party's point of view put. At some stage during the mediation, the mediator may see each party separately, during which confidentiality continues to be preserved.
What alternative dispute resolution mechanisms exist in the AEShareNet licensing system?
The process of dispute resolution for certain disputes is outlined in subclause 9.2 of the Charter. It sets out a 3 phase process for dispute resolution.
Phase 1:
- the Member claiming that there is a dispute will send to the other a notice setting out the nature of the dispute;
- within 7 days each Party nominates a representative, preferably not having any prior involvement in the Dispute, who will try to settle the Dispute by direct negotiation between them;
- The parties then have 14 days to reach a resolution of the dispute.
Phase 2:
- Failing settlement of the Dispute within a that further 14 day period,
the Dispute may be referred to an independent third person with power either
to:
- mediate and recommend some form of resolution; or
- intervene and direct some form of binding resolution;
Both parties to the dispute must agree if the ADR process is to be binding. In the event that two Members involved in a dispute cannot agree on the selection of an independent third person, the Company may nominate a person (clause 9.3);
- the ADR process may take up to 28 days to reach a resolution.
Phase 3:
- failing a resolution within a further 28 days, either Party may commence legal proceedings to resolve the dispute.
It is hoped that the majority of disputes could be settled before reaching Phase 3.
Note also that nothing in clause 9.2 prevents a Party commencing legal proceedings for urgent interlocutory relief (clause 9.5).
Failure by a Party to comply with any binding decision or resolution flowing from a dispute shall be deemed a breach of the Charter (Charter clause 9.6).
Resolution of a dispute may include a request to the Company to take certain action, including rectification of any details contained in the AEShareNet Databases (clause 9.7). For example, the resolution may involve reclassifying a Class C Member as a Class B Member.
Who pays the costs of alternative dispute resolution?
The costs incurred in the resolution of the dispute must be borne by the parties to the dispute (Charter clause 9.8).
Where the dispute is referred to a Director, executive officer, employee or agent of the Company, the Company may charge for those services (Charter clause 9.4).
What types of dispute can be referred to the alternative dispute resolution mechanism contained in the AEShareNet Charter
The following types of disputes are referred to in the AEShareNet Charter as a "Dispute" and will be subject to the Dispute Resolution mechanisms outlined in clause 9 of the Charter:
- any dispute arising between two Members in relation to ownership of copyright in a particular piece of material which has been Classified by one of the Members (i.e. in accordance with a Licence Protocol in order to Extend a Licence in relation to particular Material, such as marking, registration), regardless of whether or not a licence has actually been granted) [clause 9.1(a)]
- any dispute between a Licensor and a Licensee (whether or not the Licensee is a Member of AEShareNet) regarding any matter arising under a Licence. Note: As non-Members may take licences under AEShareNet-U, that Licence Protocol contains an additional 'Special Condition' under which the Licensee submits to the dispute resolution provisions of the Charter. These disputes could include the treatment and copyright ownership of any Derivative Material created by the Licensee, or the alleged failure of the Licensee to account for royalties [clause 9.1(b)];
- any dispute between two Members regarding any matter arising under an Assignment of copyright, including the failure of a member to comply with any collateral conditions of the Assignment;
- a dispute of any character arising under the Charter between the Company and a Member. This might be about fees levied by the Company, a Company's decision regarding inclusion of a Member in a particular category of Membership, or perhaps failure to admit a Charter Member as member of the Company.
Are there disputes which are not covered by the AEShareNet Charter's dispute resolution mechanisms?
Clause 9 would not cover a Dispute between the Company and a non-Member arising from a failure to admit the non-Member to the Charter.
Clause 9 has no application to disputes arising only under the Constitution, such as disputes about voting.