White SW Computer Law

Intellectual Property, Information Technology &
Telecommunications Lawyers

Postal Address: PO Box 452 Collins Street West, Melbourne Victoria 8007 AUSTRALIA

GPO Box 2506, SYDNEY New South Wales 2001 AUSTRALIA

Telephone: +61 3 9629 3709 Facsimile: +61 3 9629 3217

Email : wcl@computerlaw.com.au Internet : http://www.computerlaw.com.au

MULTIMEDIA ISSUES

What is multimedia?

There are many varying definitions of multimedia depending upon the use of the phrase. In general terms, multimedia is a combination of media of varying forms into one medium. Multimedia may combine component parts such as sound recordings, visual images, computer programs and digitised text.

What copyright protection does a multimedia product have?

The current Copyright Act 1968 does not classify multimedia as an individual category of work for the purposes of copyright protection. As a result, it is important to protect a multimedia product which you have developed by having an agreement which includes a clear definition of who will own the intellectual property asset.

If you want to maintain the copyright ownership in a multimedia product it is prudent to mark the product with the copyright symbol ©19XY (YEAR OF PUBLICATION). ABC Pty Ltd (NAME OF COPYRIGHT OWNER) All Rights Reserved.

What do I do if I want to use non-original works in a multimedia product?

If a substantial part of non-original text, photos, music, computer software or other artistic works are going to be reproduced or performed, your need to budget for the time and money required to obtain the permission of the copyright owner for each such work.

Who owns the copyright?

Sometimes the copyright owner will be the author or artist who produced the work. It may be the employer, if the author/artist was engaged under an employment contract to create the work. There may have been a party who had the work commissioned who owns the copyright. There may have been an assignment of copyright made between the author/artist and a third party.

What should be done once the copyright owner has been found or ascertained?

You may wish to request an assignment of the copyright or obtain a licence to use the copyright work. It may be necessary to provide the author/artist with protection of their material, for example a means to prevent their work being printed directly from the multimedia product and organise copyright markings and acknowledgments.

What remuneration should be paid to copyright owners?

The copyright owner may wish to charge a fee for allowing you to incorporate their work into your multimedia product. This payment could be made in several ways including a single fee, royalties, or profit sharing. Royalties can be calculated per number manufactured or sold. There should be consideration given to how remainders/returns will be treated. Royalties are administratively complicated and may involved advance payment of royalties and/or minimum guaranteed payments. Profit share requires an agreement of how costs will be calculated and accounted for. Will you be calculating the share using the gross or net profits? Will the accounts need to be audited?

What should be included in a multimedia development agreement?

As the developer, you should ensure that your agreement includes the following issues:

What is the liability of the developer for loss or damage caused by a fault in the product?
Who is responsible to obtain third parties' permission to use copyright works and determine their remuneration, if any?
Who owns the intellectual property rights in the product?
What are the development stages and what are the penalties for non-compliance with the development schedule?
What will be classified as a variation of the original specifications?
What are the developer's rights to increase the fee/time allowed for the project?
What will be the acceptance tests and what will be the consequences should the product fail the acceptance tests?
What are the developer's obligations for maintenance, insurance and warranties?
What is the payment schedule?
What resources will be supplied by the developer and is there any restriction on which personnel will be involved in the development?
How can the agreement be terminated?

This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquires and seek appropriate legal advice.