General Shuttleworth Foundation Open IP Clause: Difference between revisions

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Here is the Open IP Clause: [[File:shuttleworthopenIP29032012.odt]]
Here is the Open IP Clause: [[File:shuttleworthopenIP29032012.odt]]
=Details of Agreement=
=Intellectual Property Provisions=
1. These provisions governs Intellectual Property created, vested or used in terms of the agreement of which they form part. The agreement must be interpreted to achieved the objectives of the agreement.
2. It is agreed that “Intellectual Property” in this agreement means any patents, rights to inventions, registered designs, design rights, know-how, trade secrets, trade marks, Uniform Resource Locators (referred to as “URL's”), all rights of copyright, performers protection and all rights having equivalent or similar effect which may exist anywhere in the world.
3. A resource subject to Intellectual Property is regarded as created for the purposes of the agreement if it is included in any deliverable of the agreement, if it was created to fulfil an objective of the agreement, or it is otherwise necessary for the fulfilment of the agreement. If there is any doubt whether a resource is created for the purposes of the agreement then that resource shall be regarded as created for the purposes of the agreement. Such resources are referred to as Foreground Intellectual Property in this agreement.
4. Unless otherwise specified in this clause all intellectual property created for the purposes of the agreement vests in the [Insert name of Project Partner], the [Insert name of Donor] accepts the benefit on behalf of the [Insert name of Project Partner] to give effect to this agreement.
Subject to the policies of the [Insert name of Donor] and explicit instructions from the management of [Insert name of Donor]  respect of specific resources, all the rights to resources created with the Grant Amount referred to in the Agreement shall vest in the [Insert name of Project Partner] or a legal entity controlled by the [Insert name of Project Partner]. Subject to the policies of the [Insert name of Donor] the [Insert name of Project Partner] shall apply the open licenses specified in this agreement to all resources created with the Grant Amount. The policies and considerations of privacy, confidentiality, security and utility as set out in the policies, may require that resources are not subject to open licences in specific instances. All resources which relate to the core functions of the [Insert name of Donor], such as budgets, strategy documents, [pitch videos] and the like shall vest in the [Insert name of Donor]. At the end of the project period [specified in clause X]  intellectual property which has vested in a [Insert name of Project Partner] or a legal entity controlled by [Insert name of Project Partner] during the project shall remain vested in the [Insert name of Project Partner], or legal entity controlled by the [Insert name of Project Partner].
5. Resources subject to intellectual property rights which were created by either of the parties prior to or for other purposes other than the purposes of the agreement vest in the party which created them, and are referred to as Background Intellectual Property.
5.1. However whenever Background Intellectual Property is included in any resource created for the purposes of the agreement or is reasonably necessary for the use of the resource then the party in whom the Background Intellectual property vests grants a global irrevocable royalty free perpetual license to enable use, publication and dissemination of the resource in terms of the agreement. The payments made to [Insert name of Project Partner]in terms of this agreement constitute good and sufficient consideration for the grant of the global, irrevocable, royalty free perpetual licence.
5.2. Where a license to Background Intellectual Property requires any formalities such as execution of written documents then a [Insert name of Project Partner] agrees to complete such documents within seven(7) days of the request by another party.
6. Copyright:
6.1. Software created for the purposes of the agreement shall be licensed under the latest version of the GNU General Public licence (http://www.gnu.org/copyleft/gpl.html) available at the time of publication,except where the GNU Affero General Public License (http://www.gnu.org/licenses/agpl.html)  is  necessary to ensure to ensure cooperation with the development community in the case of network server software;
6.2. All other types of resources created for the purposes of the agreement which are subject to copyright shall be licensed under the latest version of the Creative Commons Attribution (e.g. http://creativecommons.org/licenses/by/2.5/za/) licence available at the time of publication, in the jurisdiction in which the work is first published.
Provided that on the written instruction of the management of [Insert name of Donor] a different open licences to those specified in 6.1 to 6.2 may be applied to a resource.
7. Compilations of data created for the purposes of the agreement, if eligible for copyright, database rights or other rights,  shall be subject to the Creative Commons 0 protocol (http://creativecommons.org/publicdomain/zero/1.0/). Provided that on the written instruction of the management of [Insert name of Donor] a different open licence or protocol may be applied to a resource work.
8. Trademarks created for the purposes of the project shall be registered in the name of the [Insert name of Project Partner], or a legal entity controlled by the [Insert name of Project Partner].
9. Uniform Resource Locators (URLs) created for the purposes of the agreement shall be registered in the name of the [Insert name of Project Partner] or a legal entity controlled by the [Insert name of Project Partner].
10. Patents; the [Insert name of Project Partner] agrees not to attempt to obtain patent, registered designs, plant breeders or similar registered rights over any resource created for the purposes of the agreement, and, or any Foreground Intellectual Property, without the prior written agreement of the [Insert name of Donor]. The [Insert name of Donor] shall permit registration of patent or related rights only for purposes of ensuring that the resource remains open, for example through use of an open patent license. If the [Insert name of Donor] agrees to the registration of a patent or similar rights then the party carrying out the registration shall bear the cost, and the rights shall be registered in the name of the [Insert name of Donor] or a party designated by the [Insert name of Donor], and shall be made subject to an open patent license such as the Creative Commons patent license immediately upon registration.
11. The [Insert name of Donor] shall be entitled to distribute Foreground Intellectual Property under the applicable open license at any time. The [Insert name of Project Partner] waives any claim and any remedy at law, including injunctive relief, an order for accounting, or a claim for damages which the [Insert name of Project Partner], and the [Insert name of Project Partner]'s heirs, successors or assigns might have in respect of the distribution regardless of whether Intellectual Property rights vest in the [Insert name of Project Partner] or a legal entity controlled by the [Insert name of Project Partner] by operation of this agreement or by operation of law.
12. Whenever the [Insert name of Project Partner] engages the assistance of or commissions works from any third party or makes use of the services of an employee in creating Foreground Intellectual Property the [Insert name of Project Partner]s shall ensure that all Intellectual Property rights in the resources created by employees or commissioned parties vests in the party designated in this agreement as rights holder, or shall be assigned to the party designated in this agreement as rights holder.
13. The [Insert name of Project Partner] shall ensure that any agreement with an employee or commissioned party concerning any Foreground Intellectual Property contains a provision vesting the Intellectual Property in the party designated as rights holder in this agreement and that the [Insert name of Project Partner] shall accept the benefit on behalf of the rights holder purely as a stipulatio alteri. The [Insert name of Project Partner] shall provide a copy of every such agreement to the [Insert name of Donor] on request.
13.1. Failing the aforegoing, the [Insert name of Project Partner] shall at least procure that all Foreground Intellectual Property created by an employee or commissioned party or attaching to such works shall vest in the [Insert name of Project Partner] or a legal entity controlled by [Insert name of Project Partner] or at least shall be assigned to the [Insert name of Project Partner] so that the [Insert name of Project Partner] in turn will be able to assign such rights to the person designated in this agreement as rights holder.
14.  Parties to the agreement may include resources created by persons not contractually bound to either of the parties or other than themselves in Foreground Intellectual Property.
14.1. A party who includes resources in the Public Domain in Foreground Intellectual Property shall ensure that the resources are appropriately attributed, and indicated or signified as being in the public domain.
14.2. A party who include resources under an open licence in Foreground Intellectual Property shall ensure that the open licenses is compatible with the license specified in clauses 6 (copyright), 7 (data compilations) and 10 (patent and similar rights), and that inclusion of the resources is compatible with the license applicable to that resource.
15. The [Insert name of Project Partner] may include resources created by third parties available under restricted licences in Foreground Intellectual Property, or render such resources necessary for the use of Foreground Intellectual Property, only with the prior written approval of [Insert name of Donor]. If consent is given then the [Insert name of Project Partner] shall every month for the currency of the agreement send to the [Insert name of Donor] a schedule setting out;
- the name and identity of the each restrictively licensed resource,
- the intellectual property rights to to which it is subject,
- the restrictive license conditions applicable to use of the resource including time,
- jurisdictional and usage restrictions,
- the amount paid for the restrictive license.
The [Insert name of Project Partner] shall render a final schedule containing all the information from the monthly schedules at the end of the term of the agreement.
The [Insert name of Project Partner] agrees that the amount to be paid to the [Insert name of Project Partner] set out in clause 5 of the Agreement is good and sufficient payment for work required to draw the schedule.
16. The [Insert name of Project Partner] warrants that Foreground Intellectual Property will not infringe the Intellectual Property or other rights of any third party and the [Insert name of Project Partner] hereby indemnifies and holds the [Insert name of Donor] harmless against any and all harm, damage, loss and costs (including legal costs) which it may suffer from a breach of these warranties. The [Insert name of Project Partner] warrants that it has the necessary permission (including licences or other lawful permissions) when using the Intellectual Property of third parties.
17. In addition to creating Foreground Intellectual Property as required by this agreements the [Insert name of Project Partner] shall deliver copies of all the resources subject to Foreground Intellectual Property for record purposes.
17.1. The delivery for intellectual property for record purposes shall be as follows:
- for a patent, a working model of the invention for a design,
- for database, trademark or copyright a copy of the resource in a high fidelity, easily manipulated format, in an open format unless otherwise agreed. Unless agreed otherwise documents shall be in such as Open Document Format, commissioned photographs and images in RAW Format, images in JPEG format.
17.2. The [Insert name of Project Partner] shall deliver a schedule in Open Document Spreadsheet format specifying:
- the name or description of all intellectual property created in terms of this agreement;
- the names of the natural person who created each resources subject to intellectual property;
- the terms applying to each item of the intellectual property;
- in whom the intellectual property vests; and
- the licence applied to the Intellectual Property.
17.3. The [Insert name of Project Partner] shall deliver the copy and record specified in this clause whenever a version of the resource subject to intellectual property is published, for example a website is launched, and in addition a final version of the schedule and resource subject to intellectual property shall be supplied prior to the end of the term of the agreement. Delivery of the intellectual property and record shall be made to
[Insert name of responsible person at Donor]
[Insert email address of responsible person at Donor]
[Insert Telephone number of responsible person at Donor]
[Insert Telefax number of responsible person at Donor]
[Insert Physical address of Responsible Person at Donor]
18. The [Insert name of Project Partner] may register or de-register a trademark or URL or design which includes the name or brand of the [Insert name of Donor] only with the express written approval of the Management of the [Insert name of Donor]


=Additional Information=
=Additional Information=

Revision as of 01:45, 12 April 2013

OSE Open IP Clause

OSE is the owner of any IP or creative work generated by anyone contracted or hired by OSE - for the purpose of ensuring that the content is openly licensed under a license .

Here is the Open IP Clause: File:ShuttleworthopenIP29032012.odt

Additional Information

From Andrew Rens, Open Source Law consultant to Shuttleworth Foundation:

The open version of an IP Contract for Shuttleworth Fellows is available here: http://www.opencounsel.net/resources.php

  • OSE is adopting this Open IP Clause as its operating IP regime
  • On the resources page at opencounsel you can see more legal resources for download, which you are welcome to load onto open source ecology.
  • You will notice that the licence the Foundation prefers is CC By.
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