N A S I G 2 8 T H A N N U A L C O N F E R E N C E J U N E 9 , 2 0 1 3

FUNDAMENTALS OF E-RESOURCE LICENSING

OVERVIEW

• Why licensing is important• Review laws that effect use of content• Getting started working with license agreements• Anatomy of a license agreement• Focus on authorized use clauses• Draw upon Florida Virtual Campus Guidelines for E-

Resource License Agreements

• Emerging licensing issues• Negotiation tips

WHY IS LICENSING IMPORTANT?

• Rights to use content in the print environment largely governed by US Copyright Law• Rights to use content in the online environment

largely governed by Contract Law though the use of license agreements• In print environment, libraries generally purchase

materials, with rights implicit to that purchase• In electronic environment, libraries typically

license, or lease access to content

COPYRIGHT LAW

• Copyright Law grants a copyright owner distribution and reproduction rights, with important exceptions:• First-sale doctrine: has to do with distribution rights• Allows libraries to lend, sell, discard print materials

• Fair-use: has to do with reproduction rights • Provides for use in criticism, comment, news reporting,

teaching, scholarship, and research.• Four factors of consideration: purpose, nature of copyrighted

work, amount of content used, effect upon market

• Educational & library exceptionsInterlibrary loan, use in course packs

CONTRACT LAW

• License Agreements for e-resources are contracts, and thus governed by contract law• Contract terms take precedence over existing

rights and exceptions granted under Copyright Law• License Agreements can reduce existing rights of

content use• Careful construction of license agreements is

essential to retain resource sharing and other rights

GETTING STARTED IN LICENSING

• Don’t be afraid/intimidated/hesitant• Develop local licensing guidelines (or steal

liberally from others!)• Ask for a copy of the agreement early in the

acquisitions process; request an editable format if necessary• Use the “Track Changes” feature of your word

processing program to edit clauses, adding comments as necessary• Assume your changes to the agreement will be

accepted by the vendor

DEVELOP A NETWORK OF SUPPORT

• Educate your colleagues• Purchasing Office• Experience dealing with contract and negotiating

• Office of General Counsel• Provide expertise on legal issues such as indemnification,

warranties, intellectual property issues

• LIBLICENSE Listserv• Forum for discussing licensing issues, Q & A

LEVELS OF COMPLEXITY

• Licenses for aggregator databases, online reference resources, collection development tools, etc., tend to be brief and relatively straightforward• E-journal package licenses, e-book licenses, tend

to be lengthier and more complex• interlibrary loan• course packs• archival and perpetual rights

ANATOMY OF A LICENSE AGREEMENT

• Description of “Licensor” and “Licensee”• Glossary of Terms• Authorized Users/Site• Authorized Uses• Licensor Responsibilities• Licensee Responsibilities• Mutual Obligations• Legal Issues (Governing Law, Indemnification,

etc.)• Schedules and Amendments

AUTHORIZED USERS

• Defined by affiliation with university, not geographic location

• Be as inclusive as possible (include contractors and affiliated users)

• Include provision for “walk-in” or “occasional” users

Sample clause:“Authorized users include those persons affiliated with Licensee as students, faculty, staff, and independent contractors of Licensee and its participating institutions, regardless of the physical location of such persons, as well as walk-in users.”

AUTHORIZED SITE

• Should be defined at the institutional rather than library level; not geographically based

• Allow access by all users who have the right to access the institutional network

Sample clause:“The authorized site consists of all geographic locations and/or campuses of the institutions that are identified in the agreement as Participating Institutions. All authorized users who have right of entry to the network are granted access regardless of their physical location. This definition may include institutions with joint-use facilities that reside on a single network.”

AUTHORIZED USES

• Retention of all rights in accordance with U.S. Copyright Law

Sample clause:“The Publisher agrees to grant to the Consortium the non-exclusive and non-transferrable right to give Authorized Users access to the Licensed Materials via a Secure Network for the purposes of research, teaching, and private study and other uses in accordance with U.S. Copyright Law, including fair use and library reproduction rights.”

OR

“Nothing in this License shall in any way exclude, modify, or affect any of the Consortium’s or any Member’s statutory rights under national copyright law.”

INTERLIBRARY LOAN

• Electronic ILL should be allowed• Remove references to: • the provision of data or statistics on ILL use, • type of library, and references to • geographic limitations to ILL (e.g., ILL to U.S. only)

Sample clause:“Licensee may supply through interlibrary loan a copy of an individual document being part of the Licensed Materials by post, fax or secure electronic transmission for the purposes of non-commercial use. Specifically, copies may be made in compliance with Section 108 of the U.S. Copyright Act.”

INTERLIBRARY LOAN & E-BOOKS

• ILL and e-books remains problematic• Loaning e-book chapters acceptable • Tools for loaning e-books under development

Sample clause:“Participating libraries may supply through Interlibrary Loan (ILL) chapters of e-book content by post, fax or secure electronic transmission. Specifically, copies may be made in compliance with Section 108 of the U.S. Copyright Act and the limitation of the [Vendor] system.”

USE IN COURSES, CMS

• May be covered in a single clause or multiple clauses

Sample clause:“Licensee and Authorized Users may use a reasonable portion of the Licensed Materials in the preparation of course packs, course reserves or other educational materials as well as within secure course management systems.”

COMMERCIAL USE

• When restrictions to commercial use appear, a clarifying clause should be present

Sample clause:“For the avoidance of doubt, charging administrative fees to cover the costs of making permitted copies is not prohibited. Use by the Consortium or a Member or by an Authorized User of the Licensed Materials in the course of research funded by a commercial organization, is not Commercial Use.”

PERPETUAL ACCESS

• Perpetual rights vary by type of resource• Aggregator databases and other databases generally don’t

provide• E-journal contracts generally include perpetual access rights• Perpetual access fees should be in the Fee Schedule

Sample clause:“Perpetual access to the full text will be provided by the Publisher either by continuing online access via the Publisher’s server or by supplying the electronic files to each subscribing Institution in an electronic medium mutually agreed between the parties. Continuing archival access and use is subject to the terms and conditions of the expired License.”

LICENSOR RESPONSIBILITIES

• Privacy• Quality of service• Provision of usage statistics• Collection of usage statistics by third party

• Provision for withdrawn materials

LICENSEE RESPONSIBILITIES

• Notifying users of license terms • Avoiding breach(Language requiring the licensee to do the above should be edited to make reasonable efforts to)• Confidentiality – Florida Public Records Law• Discipline for breach – requirements should be

struck

LEGAL ISSUES

• Governing law – should be state of home institution, or agreement should “remain silent”• Website user agreements – written agreement

supersedes online agreement• Indemnification• Warranties• Limitations of Liability(These are complex legal concepts; legal counsel should be sought for clauses of concern.)

SCHEDULES AND ATTACHMENTS

• Useful for laying out terms of the contract that don’t fit neatly into the main body of the contract• Commonly include:• Fee schedules• Details on participating libraries• Lists/descriptions of licensed content• Invoicing instructions• Contact information

• Are referenced in the main body of the contract

OTHER LICENSING ISSUES

• Do I need a license?• SERU (Shared Electronic Resource Understanding)

• MOOCs• ADA • Data Mining• ILL for E-books

NEGOTIATION TIPS

• Make sure all your constituents are on the same page.• Set your expectations high.• Know where your points of compromise are and use

them as necessary.• Refer back to established guidelines and practices.

RESOURCES

FLVC Licensing Guidelines, Version IIhttps://fclaweb.fcla.edu/uploads/FLVC_Licensing_Guidelines_Version_III_Final.pdf

LIBLICENSE PROJECT http://liblicense.crl.edu/

U.S. Copyright Lawhttp://www.copyright.gov/title17/

SERUhttp://www.niso.org/workrooms/seru

QUESTIONS?

Contact me:

Claire DygertAssistant Director for Licensing and E-ResourcesFlorida Virtual Campus – Gainesvillecdygert@flvc.org352-392-9020 x307