Exploitation of your copyright

1.Assignments

Assignments as to Copyrights - once the work is completed it can be divided by reference to time, country and media. For example, you could assign the TV rights to your novel in Japan for ten years reserving a royalty or otherwise.

2.Licensing

Licensing as to Copyrights - is the creation of limited rights in another to exploit your copyright for your joint benefit. It can be exclusive or non-exclusive.

1. Assignments

1.1

Contracts for the assignment or licensing, distribution or disclosure of your site and its code should be in writing and must be clear and unequivocal as to the rights that are granted and reserved. The term, the identity of the parties entitled to the benefit of the contract and the geographic area to which it relates should also be recorded in that contract.

1.2

Registration of written dealings in copyright for any of the above purposes is not available in Australia but can be a pre-requisite to enforcement in some countries and you should seek expert advice before considering international exploitation.

1.3

You need not assign all of the copyright or all of the rights relating to copyright. Contracts can be exclusive and non-exclusive and you could, for instance, assign the whole of the Japanese rights in an irretrievable manner and yet, at the same time, licence the U.K. rights reserving the reversion of the U.K. copyright at the expiration of the U.K. agreement.

1.4

All contracts relating to your program should be professionally written with all of the terms specified relating to the language and/or translation and reverse engineering rights, royalties and fees, performance guarantees, copyright notices, enhancement, modifications, interfacing and the appointment of subsidiary rights.

1.5

The outright sale of copyright of at least some geographic regions must be considered if you do not have adequate capital for development and marketing. Parties who are expected to expend capital in development and marketing are unlikely to commit their funds whilst you remain the exclusive owner. If you are an individual (rather than a company) you will still retain certain "moral rights" such as the right to be attributed as the author, unless you waive those rights in writing. Part ownership by way of a joint venture may be the answer, but question who is to own the copyright and the royalties both before , during and after the agreement, and in what proportions. Who must be parties to any litigation?

1.6

It is also important to consider assignment on the issue of trade marks. If you have a fully developed website with some market presence, then a distribution agreement is a common method of ensuring the due and proper marketing of your site. These agreements require the same detailed consideration as mentioned above and, in addition, consideration must be given to ensuring that any goodwill and reputation arising from the distribution attaches to your trade mark and you.

1.7

This will involve the assignment of the right to use exclusively or non- exclusively your trade mark for the limited purposes specified in the agreement. If you do not own the trade mark, then all of the goodwill and reputation in your program will attach to your distributors mark and at the expiration or termination of the agreement the distributor will own the mark and the related goodwill and reputation and you will own an anonymous program.

1.8

Prior to disclosing your copyright code to potential distributor, you should attempt to obtain a confidentiality agreement, wherein the distributor acknowledges your copyright, your confidential information and the limited purposes of the disclosure. That agreement would restrict the right of the distributor to disclose the site to other parties.

1.9

A disclosure to a person may result in a disclosure to third parties who owe you no duty of confidentiality. The disclosure agreement must bind the person and the company to whom you are making the disclosure not only to prevent unlicensed exploitation but also disclosures to third parties. Some software houses will not execute confidentiality agreements and you may have to consider reliance on the reputation and limited assurances that that company offers or, alternatively, pass up the opportunity of exploitation with that company.

2. Licensing

1.1

An assignment of the copyright allows the new owner to alter the copyright material in whatever manner and for whatever purpose he or she might choose and to do so without reference to you.

1.2

Under a licence, the licensor is able to place limitations on the licensee's right to alter the licensed material.

1.3

An exclusive licence must be in writing and the licensee may bring proceedings for infringement against all infringes other than the licensor.

1.4

A non-exclusive licence can be verbal or implied and for that reason you must be extremely careful in your verbal and unwritten dealings with your website.

1.5

Developments or enhancements to the website after the date of licensing are extensions carrying separate and identifiable copyrights.

1.6

The right to make these enhancements and their ownership, and the right to royalties and the apportionment of royalties, between the original copyright material and the enhancements can be the source of grave difficulties if not dealt with adequately in the agreement.

1.7

Each license agreement must deal with the above issues and issues such as:

• New trade secrets developed during and or parallel to the performance of the agreement;

• Obligations as to technical assistance and remuneration as to the provision of such assistance;

• Legal liability for breach of contracts of supply and tortious liability such as breaches of the copyrights of others;

• Performance obligations as to territories, their development and sale levels and marketing budgets;

• Royalties at fixed and variable rates, exchange rates and the burden of losses;

• Local and international auditing and the cost of such matters with and without default;

• The right to make or manufacture the discs and instruction manuals;

• What rights the author retains, including moral rights such as the right to be attributed with the authorship.

1.8

Joint venture agreements between yourself and the distributor are a significant avenue for exploitation of programs if you want to play an active role in the business side of the exploitation. Remember this essentially means you have a partner who may not be well known to you, and remember all the stories of marriages and divorces.