Derivative works and the AEShareNet licensing system.
Overview
This document discusses how derivate works may be made from copyright material, and the legal implications under the various AEShareNet licences. Derivative works are modifications or adaptations to the original material.
Discussion of general law
The copyright law makes some general provision for derivative materials. If the new material incorporates a substantial part of the original, it qualifies as a "reproduction". Making a reproduction, and any subsequent copying of it, requires permission of the original owner. At the same time, if the additions and alterations are substantial, that gives rise to a fresh layer of copyright, owned as a rule by the maker. It is important to understand that these 2 propositions can overlap. A derivative product may incorporate a substantial part of the original work as well as substantial new material. In such a case two possibilities arise:
- to the extent that the improvements cannot meaningfully be separated from the base material, a joint ownership arises. This means that any third party wishing to make copies will need the permission of both prior owners to make copies. The original owner still has complete ownership of copyright in the original version. The second owner's copyright cannot be separately exploited, but that person has a right to withhold permission for use of the derivative version, and that right can be negotiated into some benefit.
- to the extent that the improvements consist of substantial, additional material, they may meaningfully be said to constitute a separate work, in which copyright is owned by the improver. Each party therefore owns a separate copyright in their separate portions of the derivative product.
These rules can be varied by agreement.
In negotiating any agreements copyright owners are keen to exercise control over the intellectual property of derivative works:
- to protect the educational integrity of the materials;
- to ensure orderly version control; and
- to ensure that any desirable enhancements can be incorporated into the standard document without having to obtain permission from the enhancer; that is, to prevent a layering of copyright which would complicate the granting of permissions to third parties.
For their part, persons and organisations undertaking improvements expect some incentive for them to do so. This may be in the form of copyright ownership of the fresh layer (the improvements themselves), joint ownership and/or a share in royalties on the improved version as a whole, grant funding or other one-off payment for the work done, or at least some practical expectation of market lead time to exploit their version before the improvements are adopted by the original copyright owner or picked up by others.
Because of the competing interests, the treatment of copyright in derivative materials is one of the most vexed issues in intellectual property management.
The AEShareNet licensing system provides a comprehensive and balanced set of principles to resolve these competing interests. A major objective is to avoid wherever possible the disadvantages of joint copyright - see Common licensing mistakes.
Relationship between original and derivative material
We would distinguish 4 degrees of relationship which may exist between the original material and "derivative" material. These are:
- Exact Copies. As the name implies this involves an exact reproduction in the same or a different medium but without alteration of any content.
- Enhancements. This term refers to minor or substantial alterations which cannot meaningfully be separated from the original work. It would also cover an abridgment, or an adaptation within the meaning of the Copyright Act 1968. The Charter would define the term as follows:
Enhancement, in relation to Material, means any modification, contextualisation, adaptation, abridgment or redevelopment incorporating a substantial part of the Material.
- Supplementary Work. Refers to substantial additional work which is designed to be used in conjunction with the original work; although in some cases it can meaningfully be interpreted, at least to some extent, on its own, and conceivably could be licensed separately from original work. For example the addition of two modules to a training package.
- Compilations. This is an entirely different layer of copyright which arises when a series of existing works or items are collected together to form a combined package or product. The best example nowadays is a CD-ROM incorporating text, illustrations, music, animation and full video material.
Copyright ownership models
Where Derivative Material of any kind (Enhancement, Supplementary Work or Compilation) is created, the issue arises as to how copyright is to be allocated between the owner of the original Material and the Licensee who creates the Derivative. For this purpose a distinction may be drawn between 3 different ownership models:
- Consolidation Model: Copyright in the Derivative version (including any fresh layer of copyright arising from the additional efforts of the Licensee) "consolidates" with the original copyright owner. Indeed the "improvement layer" may not be severable. The original copyright notice and AEShareNet Marking which appear as part of the Material must be retained.
- Concurrent Model: Again, the "improvement layer" may not be severable. This time copyright in the Derivative version (including any fresh layer of copyright arising from the additional efforts of the Licensee) vests in the Licensee. However, the original copyright owner retains "concurrent" copyright in the original version. Thus the two parties exercise copyright concurrently in slightly different versions of the Material.
- Partitioned Model: In this case, the old and new Material may meaningfully be treated separately. Any fresh layer of copyright arising from the additional efforts of the Licensee vests in the Licensee. However copyright in the original Material stays with the original copyright owner. Thus any use of the two together requires the permission of both owners.
AEShareNet-C
The discussion that follows shows how the different kinds of "derivative" would be dealt with under AEShareNet-C, as this regime presents the richest range of possibilities.
- Exact Copying. The Licensee must retain the original copyright notice and AEShareNet-C licence marking.
- Enhancement. 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 for AEShareNet-C Material, copyright in any Enhancements is Consolidated into the copyright owner's 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. The Enhanced version should be accompanied by an appropriate disclaimer, e.g.: "Modification not necessarily endorsed by copyright owner".
The arrangements described in the previous paragraph, relating to copyright ownership, notices and Marking, may be varied by the Licensor. This would occur typically in the context of vetting (where applicable). It is possible that the Licensor/copyright owner might agree that the Enhancer can claim copyright in the enhanced version (probably on the condition that it is fed back into the system under the same AEShareNet-C licence mark). In that case the two parties exercise copyright Concurrently in slightly different versions. - Supplementary Work. In AEShareNet-C the Licensor may stipulate that vetting is to apply to the material as supplemented. As a rule, copyright would be asserted by the original copyright owner and the Licensee separately in relation to their separate modules, i.e., copyright is Partitioned.
- Compilations. In AEShareNet-C the Licensor may reserve a right to vet. In this case vetting applies to the context of inclusion, not the whole compilation. The fact that the Material is to be included in a compilation may affect the form of copyright notice they will require to be applied in relation to their component. The Licensor/owner would usually require retention of their copyright notice and the AEShareNet-C mark in some fashion that clearly relates to that material. The maker of the compilation would own the compilation copyright, but not necessarily the individual component materials. Copyright is Partitioned.
Other Licence Regimes
The treatment of Derivative Materials under the other three licence regimes is simpler.
AEShareNet-U allows Enhancements with no reference back to the Licensor. The Licensee may independently exercise the whole copyright in the Enhancement, concurrently with the original copyright owner's exercise of their copyright.
AEShareNet-P does not permit any Enhancements, and therefore no issues arise regarding vetting and ownership of Enhancements.
AEShareNet-S allows Enhancements with no requirement for vetting. However the new layer of copyright created in the process is consolidated in the hands of the original copyright owner.
Full licence comparisons
The Full comparison of licences sets out, for each regime and each category of Derivative, the ownership model to be applied by default. The first two models are generally relevant to Enhancements. The Partitioned Model generally applies in the case Supplementary Works and Compilations. Note that none of the AEShareNet models promotes joint ownership.
Any of the default ownership outcomes specified in the table may be varied by agreement in writing. A plausible example follows: AEShareNet-C allows Enhancements, subject to vetting where stipulated by the Licensor. The usual position is that Enhancements would be Consolidated with the copyright owner's copyright. There may be cases where the Licensor/copyright owner decides (possibly in connection with the vetting process) they have lost interest in further developing the material, or at any rate in tracking further derivatives down the path taken by the Licensee. They may agree in writing that copyright be held Concurrently (possibly on condition that AEShareNet-C mark is retained).
Retention of copyright notices and AEShareNet markings
The Full comparison of licences sets out retention requirements in particular cases. Where applicable, the Licensee must "retain" any copyright notice and any AEShareNet Marking which appears as part of the Material, and only those notices/markings. If the notice or marking is displayed on packaging or stored as metadata it should not be included. This means that the Licensor can control the proliferation of copies bearing a copyright notice and Licence Mark. That may be useful under AEShareNet-U, where there is no ability to "unmark" or alter the applicable mark.
References to a copyright notice include any attribution of authorship, acknowledgment of funding and endorsement which appears in conjunction with the copyright notice.
Note that the owner stated in the copyright notice may occasionally be different to the Licensor. A Licensor may be a Distributor or agent of the copyright owner appointed to administer the owner's copyright through the AEShareNet licensing system or generally. Under AEShareNet-C, that would include making decisions in the context of vetting.
Vetting processes
Where applicable, vetting is required prior to Exploitation. The Licensee does not have to obtain permission prior to undertaking an Enhancement or other Derivative intended only for in-house Use as this would be cumbersome.
A preview copy of the material to be vetted must be provided as soon as possible after development if an intention has been formed to proceed to Exploitation, and prior to Exploitation. The Licensee must comply with any reasonable request for alteration which the Licensor makes within 14 days of provision of the material to be vetted. The Licensor may require that the altered material be submitted again for vetting. The Licensor may agree in writing to vary the above requirements for retention of copyright notices or AEShareNet Markings. In addition to the retention of any AEShareNet Licence Mark, vetting may be directed to attribution of authorship, acknowledgment of funding, copyright notice, version identification, the identification of Enhancements and Supplementary material, retention of catalogue item and other metadata, consistent titling, warnings and disclaimers.
Free copies
The Licensor is entitled to free copies of:
- any Enhancement where ownership is consolidated with the original copyright; or
- any category of Derivative which has been vetted.
i.e. free copies must be provided to the Licensor by the Licensee for any Enhancements made to AEShareNet-S and AEShareNet-C materials, and any AEShareNet-C material that has been vetted.
The copy should be provided in suitable machine readable form as agreed between the parties to facilitate the copyright owner's subsequent exercise of the copyright.