# The Librarian's Copyright Companion/Chapter 7

Chapter Seven
Licensing
The Copyright Act of 1976 was for the most part technologically neutral. For example, in defining the types of works eligible for copyright protection, Congress wrote of "original works of authorship fixed in any tangible medium of expression, now known or later developed.…" The Pythia—the Oracle of Delphi—could not foresee the digital information revolution, and certainly not the topsy turvy world where accessing information has become more common than owning it.
The changes from ownership to access through licensing has significant consequences for libraries. Licenses can dilute and even eliminate critical rights for libraries and users, including the first sale doctrine, the library exemption, and fair use. For example, the section 107 fair use exemption permits a library patron, in most circumstances, to copy an article from a journal or a chapter from a book. But a patron may be out of luck if the library subscribes only to the digital version of the journal if the license precludes copying even small parts of articles.
Consider this example: Professor Wagstaff, who will speak at a national conference, wants to share with the other panelists copies of federal statutes and court decisions relevant to the program. The professor finds the documents on a licensed database, and, after removing any proprietary elements from the database, downloads the cases and laws and makes a print copy. By removing any copyrightable elements that had been added by the database vendor, such as annotations, he should be only dealing with public domain material that can be freely copied. But then he ​discovers that the license agreement permits him to "transfer and store temporarily insubstantial amounts of data."
Under the Copyright Act, works of the federal government are not protected by copyright. Professor Wagstaff certainly may copy selected laws and court decisions from print codes and case reporters that sit on the library's shelves. However, a license to an electronic database may prohibit him from copying that same information, even though it is in the public domain. The license makes all the difference: even if the information is identical, the print copy owned by the library is treated differently that the digital copy that is merely licensed to the library and subject to contractual restrictions.
The Uniform Computer Information Transactions Act (UCITA) shows how unfriendly contracts can be to libraries. Uniform laws like UCITA are drafted by a group of attorneys and legal scholars called the Uniform Law Commission (ULC), or the National Conference of Commissioners on Uniform State Laws. After the ULC proposes a uniform law, each state legislature can choose to enact into state law. Due to some of UCITA's provisions, especially its imposition of liability on a library for patron license violations, we are not fans of UCITA. We are glad only two states, Virginia and Maryland, have adopted it. Even if your licenses are governed by another state's law, it is always wise to understand basic contract law and carefully read your licenses.
The License under the Microscope
7.1. Licensing Agreement
* Read the contract
* Permanent or temporary access
* No barriers to authorized users
* Preserve Copyright Act rights
* Respect user's privacy and confidentiality
* Hold-harmless clause
* Read the contract again
One way to examine the good, the bad, and the ugly that you may find in license agreements is to take a look at a license. Let's look at the online subscription agreement for journals from the American Meteorological Society, with our comments added.
American Meteorological Society Journals Online Subscription Agreement
Comment: Access via IP addresses is good. This way users working in your library won't have to manage their own passwords. If your library uses a proxy server—a local computer that serves as an intermediary between off-site users and the subscribed online resources—authorized users can access the resource from any computer, anywhere.
Comment: Essential. Users obviously need to be able to search through the licensed information.
Comment: Also essential. Users will want to be able to download and retain relevant materials for future use. Make sure the license doesn't limit you to a specific terminology. Today you may be using discs, tomorrow USB drives, and a few years from now some media that is just now being invented.
Comment: Very good. This license permits the making of a single print copy with no limitation on the amount (for example, "a small excerpt" or "500 words"). Some databases (especially for electronic books) may impose limits because publishers don't want users to print too much of the content. Watch for limits; be sure your users will be able to make effective use of the licensed database.
Comment: This language is very desirable for two reasons. First, users' expectations are often based on using print resources, so it is great that the license matches the sharing ability of print. Second, the language acknowledges fair use, and you are not signing away any rights you have under the Copyright Act. The language does not specifically recognize the section 108 library exception. We would like to see that expressly acknowledged in the license. The best language would say "to share hard copy with third parties to the same extent as the print edition or the extent permitted under the Copyright Act of 1976, including but no limited to fair use (section 107) and the library exemption (section 108)."
Comment: Very good. Fair use permits some quotation, especially for purposes of comment or criticism, but this authorized further quotation and reuse in users' own work. The attribution requirement is perfectly appropriate and aligned with professional and scholarly norms. It's also nice that this language acknowledges the public domain status of federal government works.
Comment: In addition to defining what users can do with licensed content, it is helpful when publishers spell out prohibited uses. You need to make sure none of the prohibited uses are things your patrons will need for their work. If you don't understand the meaning of any of the terms (such as "time-share"), clarify what the definitions before you sign.
Comment: This inclusive language addresses virtually every type of user and both on- and off-site access. You may need to clarify the distinction between "persons affiliated with remote sites of campuses" (who can access the database) and "persons affiliated with remote sites of campuses that have separate administrative staffs" (who may not): Many academic institutions have multiple campuses. This vendor wants to separately license databases to each campus, which is pretty typical. You will want to find out if the vendor also offers a multi-site or system-wide license.
Comment: This language requires a reasonable commitment from the library to discourage license violations, but also doesn't ascribe user violations to the library. Library staff should, of course, encourage license compliance, but they cannot police every use of the database.
Comment: The contract should specify that you are to be informed of new terms and conditions in writing. You don't want new terms conveyed merely via e-mail or a notice on the vendor's Web site. It is too easy for e-mail to get caught in a spam filter, and you shouldn't have to monitor the vendor's Web site for changes. Certified mail is probably overkill, but a paper notice in the mail isn't too much to expect. For planning and budget purposes, you may want sixty or even ninety days' notice.
Comment: The cup is more than half full. It is great that the vendor offers perpetual access to the materials you subscribed to during the term of the license, even if the license is not renewed. You may want to see the format in which the materials can be accessed in the event the vendor takes the content off the Web.
Comment: You want the vendor to notify you of suspected violations of the contract before they suspend access to the content. You should insist on written notice, and also the right to respond. You may even want to include in the agreement how disputes will be handled, including arbitration, and who will pay the costs of the dispute resolution process.
Comment: You want and need vendor support. This language details how to contact the vendor through phone and e-mail.
Comment: No surprise. The vendor will not assume responsibility for the content of the information in the database. Often vendors redistribute content published by other companies, so this generally makes sense.
Comment: We all understand that there may be glitches. The real question is whether they are serious, and how long they last. We have no problem agreeing that the vendor will not be responsible for minor interruptions in service or small data errors. But we do have a problem with sustained or continuous lapses in service.
Sometimes vendors will try to disclaim all warranties, both express and implied. If the vendor will not agree to any express warranties, you at least want the contract not to negate the implied warranties of merchantability and fitness for a particular purpose, which can provide important protections in the event that the vendor or the product does not perform as promised or expected. If the database or some part of it cannot be used for the purpose for which it was acquired, the library may want to terminate the contract and have the vendor refund part of the subscription payment.
Comment: In the event of the vendor’s breach or other problems the library's remedy is limited to the monies connected to the license fee. The vendor will credit you for the time you cannot access the service beyond the "minor or occasional interruptions" mentioned earlier. That the vendor will not be liable for special, incidental, or consequential damages is standard fare for license agreements. For example, if an article in the database has erroneous information and a user relies on that information and suffers some harm due to that reliance, the user can't blame or recover consequential damages from the vendor.
Comment: More standard language that protects the vendor from matters not under its control.
Comment: This is the entire agreement. It doesn't matter what was said over the phone or via e-mail during contract negotiations. If you don't like the license, change it before you sign it.
Comment: Standard language. You can't transfer the license to another institution.
Comment: Also standard. If, for example, the "disclaimer of warranty" language was held to be unenforceable because it violates public policy or is preempted by federal law, the rest of the contract is still valid.
Comment: You usually want the contract to be interpreted under the laws of your home state. If your library is publicly funded, your state may have laws requiring that contracts be interpreted under the laws of your home state. Although in most cases this probably is good for the library, it is not always true. For example, if your state enacted UCITA (Virginia and Maryland) you may be better off interpreting the contract under the laws of a state that did not. If you are operating under laws that prohibit a contract from stating that disputes will be governed by laws other than those of your home state, you may want to simply delete the choice of law section of the contract.
The last steps are to sign and date the contract. Both parties should have original signed copies of the contract.
You could look at other licenses for ideas about terms to include or exclude. One of the best sources, LicensingModels.org, suggests model licenses for private libraries, public libraries, single academic institutions, and academic consortia. LicensingModels.org puts in [square brackets] optional language for contracting parties to consider. Below you will find selected portions of LicensingModels.org's "Academic Single User License" and our comments on some of the provisions.
​LicensingModels.org Academic Single Institution License: Version 4.0 October 6, 2009
KEY DEFINITIONS
Comment: Clear definitions are critical. Make sure important terms are defined and that you and the vendor have a common understand about the meaning of the words.
Authorized Users. Current members of the faculty and other staff of the Licensee (whether on a permanent, temporary, contract or visiting basis) and individuals who are currently studying at the Licensee's institution, who are permitted to access the Secure Network from within the Library Premises or from such other places where Authorized Users work or study (including but not limited to Authorized Users' offices and homes, halls of residence and student dormitories) and who have been issued by the Licensee with a password or other authentication [together with other persons who are permitted to use the Licensee's library or information service and access the Secure Network but only from computer terminals within the Library Premises].
Comment: Again, pay special attention to who is covered as an authorized user. You want to be sure that every patron that may need the database will have access to it. This model language is very inclusive and appears to cover all types of faculty, staff, and students. Libraries that are open to the public will certainly want to include the bracketed language permitting unaffiliated patrons to use the database on site.
Commercial Use. Use for the purposes of monetary reward (whether by or for the Licensee or an Authorized User) by means of sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Materials. Neither recovery of directed costs by the Licensee from Authorized Users, nor use by the Licensee or by an Authorized User of the Licensed Materials in the course of research funded by a commercial organization, is deemed to be Commercial Use.
Comment: We would prefer that cost recovery include both direct and indirect costs. Charging to cover the costs of staff time, for instance, should not make your use commercial.
Comment: If you want to use the database to create course packs, it is good to address and define them in the agreement.
Electronic Reserve. Electronic copies of materials (e.g. book chapters, journal articles) made and stored on the Secure Network by the Licensee for use by students in connection with specific courses of instruction offered by the Licensee to its students.
Comment: This is a fair definition. Electronic reserves are an important function for licensed databases in academic institutions. Watch for limits on how much content can be placed in electronic reserves and how long the content can be retained.
Secure Network. A network (whether a standalone network or a virtual network within the Internet) which is only accessible to Authorized Users approved by the Licensee whose identity is authenticated at the time of log-in and periodically thereafter consistent with current best practice, and whose conduct is subject to regulation by the Licensee.
Comment: Different vendors have different requirements for how access is technologically mediated. Make sure you understand how your institution’s systems work or bring your information technology department into the loop for database licenses.
Text Mining. A machine process by which information may be derived by identifying patterns and trends within natural language through text categorization, statistical pattern recognition, concept or sentiment extraction, and the association of natural language with indexing terms.
Comment: Text mining is when computers crunch through large datasets of text to find patterns. For example, a researcher could load a dataset containing multiple years of a major newspaper and search it find out when certain words became popular or what were the top news topics at various times. Or librarians could load a huge set of journal articles into a computer and perform citation analyses to discover how theories spread through a scholarly discipline. Vendors generally want to make special arrangements for text mining projects for at least. two reasons. First, these projects generally require having a complete digital copy of a large number of copyright-protected works, many more than a normal researcher would need to access. Second, the automated computer programs that ​
* download such large numbers of documents can overload vendors’ servers if they are not given advance warning.
AGREEMENT
The Publisher agrees to grant to the Licensee the non-exclusive and non-transferable right, throughout the world, to give Authorized Users access to the Licensed Materials via a Secure Network [for the purposes of research, teaching and private study], subject to the terms and conditions of this License, and the Licensee agrees to pay the Fée;
* Comment: If you can delete the language limiting use to research, teaching and private study, that’s great. But including them is not a deal-breaker.
[This License shall commence at the beginning of the Subscription Period, for each of the Licensed Materials as set out in Schedule 1 or in new Schedules to this License that may be added subsequently; and shall automatically terminate at the end of the Subscription Period, unless the parties have previously agreed to renew it.]
* Comment: You have some choices: If you want the license to terminate automatically at the end of the term, use this language. If you don’t, see below.
or
[This License shall commence on [date] and shall remain in effect [until {date}] [for {three} years from that date, and shall continue thereafter to be in effect unless terminated by either party by six months written notice to the other.]
* Comment: With this language, the contract renews automatically unless a party gives six months notice in writing. Six months seems a bit long, two or three months is better. You always want notice in writing. Best option is a print letter and e-mail notice.
USAGE RIGHTS
The Licensee, subject to clause 6 below, may:
[Load the Licensed Materials on the Licensee’s server on the Secure Network.]
* Comment: Good. No computer system is infallible, and having redundant copies provides greater assurance that content will be accessible whenever it is needed.
Make such [temporary] local electronic copies [by means of caching {or mirrored storage}] of all or part of the Licensed Materials as are necessary solely to ensure efficient use by Authorized Users [and not to make available to Authorized Users duplicate copies of the Licensed Material].
* Comment: Making a cache copy provides quicker access to the online data.
Provide single printed or electronic copies of single articles at the request of individual Authorized Users.
* Comment: Good. This is consistent with the section 108 exemption that permits libraries to make copies at a patron’s request.
Authorized Users may, in accordance with the copyright laws of [jurisdiction] and subject to clause 6 below:
Search, view, retrieve and display the Licensed Materials.
Print a copy or download and save individual articles or items of the Licensed Materials for personal use.
Use individual parts of the Licensed Materials within Learning Objects for the Licensee’s teaching, learning or training purposes.
Use Text Mining technologies to derive information from the Licensed Materials.
* Comment: This language is good because it allows researchers to make full use of the database with software tools.
Distribute a copy of individual articles or items of the Licensed Materials in print or electronic form to other Authorized Users or to other individual scholars collaborating with Authorized Users but only for the purposes of research and private study [; for the avoidance of doubt, this sub-clause shall include the distribution of a copy for teaching purposes to each individual student Authorized User in a class at the Licensee’s institution].
* Comment: This allows each student to have a print or digital copy of any articles needed for class or research.
Download a copy of individual articles or items of the Licensed Materials and share the same with Authorized Users or other individual scholars collaborating in a specific research project with such Authorized Users provided that it is held and accessibly within a closed network that is not accessible to any person not directly involved in such collaboration and provided that it is deleted from such network immediately upon completion of the collaboration.
* Comment: These uses are expressly permitted under the license. Make sure you read this section carefully. Regarding the last permitted use, you could be more succinct (and a little more encompassing) by using the following language: “Distribute a copy of individual articles or items of the Licensed Materials in any format to other Authorized Users, including copies to students enrolled in a class or those who attend educational programs sponsored by the Licensee’s institution.”
[Nothing in this License shall in any way exclude, modify or affect any of the Licensee’s rights under Copyright Revision Act 1976 as amended subsequently provided that such rights are exercised in accordance with Section 108 of the Act and with the guidelines developed by the National Commission on New Technological Uses of Copyrighted Works (CONTU Guidelines) and published in U.S. Copyright Office Circular 21.]
* Comment: This is acceptable, but the language below is better.
or
[Nothing in this License shall in any way exclude, modify or affect any of the Licensee’s statutory rights under the copyright laws of {jurisdiction}]
* Comment: The first clause above references only the section 108 library exception and the CONTU guidelines. The second clause is broader and better: it encompasses all exemptions in the Copyright Act, including fair use, the library exception, and the public performance exception.
SUPPLY OF COPIES TO OTHER LIBRARIES
[The Licensee may, subject to clause 6 below, supply to an Authorized User of another library {within the same country as the Licensee} (whether by post or fax [or secure transmission, using Ariel or its equivalent, whereby the electronic file is deleted immediately after printing]), for the purposes of research or private study and not for Commercial Use, a single ​ paper copy of an electronic original of an individual document being part of the Licensed Materials.]
* Comment: This language is too restrictive and focuses on paper copies. The next option is much better.
or
[The Licensee may, subject to clause 6 below, supply to an Authorized User of another library {within the same country as the Licensee}a copy of an individual document being part of the Licensed Materials by post, fax or electronic transmission via the Internet or otherwise, for the purposes of research or private study and not for Commercial Use. ]
* Comment: This language is better, because it permits electronic transmission. But who is an “authorized user of another library”? We would remove that line. We would also ideally remove the last clause. We prefer the following language: “Consistent with section 108 of the Copyright Act, the Licensee may provide to another library, in any format and by any mode of communication, a single copy of an individual document that is part of the licensed materials.”
or
[Notwithstanding the provisions of Clauses 3.1 and 3.3, it is understood and agreed that neither the Licensee nor Authorized Users may provide, by electronic means, to a user at another library a copy of any part of the Licensed Materials for research or private study or otherwise.]
* Comment: Undesirable, but it’s not uncommon to find a clause that permits you to only send another library a paper copy.
COURSE PACKS AND ELECTRONIC RESERVE
[The Licensee may, subject to clause 6 below, incorporate parts of the Licensed Materials in printed Course Packs [and Electronic Reserve collections and in Virtual Learning Environments] for the use of Authorized Users in the course of instruction at the Licensee’s institution, but not for Commercial Use. Each such item shall carry appropriate acknowledgement of the source, listing title and author of the extract, title and author of the work, and the publisher. Copies of such items shall be deleted by the Licensee when they are no longer used for such purpose. Course packs in non-electronic non-print perceptible form, such as audio or Braille, may ​ also be offered to Authorized Users who, in the reasonable opinion of the Licensee, are visually impaired.]
* Comment: Along with specifically authorizing putting content in electronic reserves, it is worthwhile to authorize putting content in your institution’s online course management system.
or
[For the avoidance of doubt, the Licensee may not incorporate all or any part of the Licensed Materials in [Course Packs] [and] [Electronic Reserve collections or Virtual Learning Environments] without the prior written permission of the Publisher, which may set out further terms and conditions for such usage.]
* Comment: Under this language, permission is required to use database content in course packs and electronic reserves. The first part of this license calls the licensor the “Publisher.” However, it’s common for the licensor to be an aggregator of others’ content. This language presumes that the owners of the content have authorized the aggregator/licensor to grant or deny certain permissions. Since you already paid for the content, and because it’s available to students at your institution, you might think that vendors would have no problem including content in course packs, electronic reserves, or course management systems. If this is not permitted in the agreement the vendor sends you, add it.
PROHIBITED USES
Neither the Licensee nor Authorized Users may:
remove or alter the authors’ names or the Publisher’s copyright notices or other means of identification or disclaimers as they appear in the Licensed Materials;
* Comment: No problem. As an ethical matter and to comply with the DMCA, don’t mess with copyright management information.
systematically make print or electronic copies of multiple extracts or make multiple copies of any part of the Licensed Materials for any purpose other than expressly permitted by this License;
* Comment: Systematic copying is not permitted under section 108(g), so this restriction is probably not a problem. It would be nice is systematic copying were defined.
prepare derivative works or download, mount or distribute any part of the Licensed Material on any electronic system or network, including without limitation the Internet and the World Wide Web, other than the Secure Network, except where expressly permitted by this License under clause 3.2.6;
* Comment: Making derivative works is one of the copyright owner’s rights, so agreeing not to make them without permission is fine. Since the library doesn’t obtain copyright ownership through the license, you cannot distribute the content on the open Internet. Sending links to users that can access the content is fine, though, because you are not making copies.
reverse engineer, decompile, alter, abridge or otherwise modify the Licensed Materials or any part of them for any purpose whatsoever, except as expressly provided in this License.
* Comment: This catch-all language means if the license doesn’t authorize a use, then it is prohibited. This is why carefully reading the authorized uses language is so important.
The Publisher’s explicit written permission must be obtained in order to: use all or any part of the Licensed Materials for any Commercial Use;
* Comment: This does not bother us. “Commercial Use” is defined earlier as selling or transferring the licensed information for money. Presumably you can use the information in support of grants. If you are in a for-profit institution, make sure that “Commercial Use” does not include the day-to-day operations of the enterprise.
systematically distribute the whole or any part of the Licensed Materials to anyone other than Authorized Users;
* Comment: No problem.
publish, distribute or make available the Licensed Materials, works based on the Licensed Materials or works which combine them with any other material, other than as permitted in this License;
* Comment: We assume “publish, distribute, or make available” means very wide distribution, but those words aren’t defined. Even so, we can live with this section.
alter, abridge, adapt or modify the Licensed Materials, except to the extent necessary to make them perceptible on a computer screen to Authorized ​ Users. For the avoidance of doubt, no alteration of the words or their order is permitted.
* Comment: We would delete this. You should be able to “alter, abridge, adapt, or modify” the materials as long as you are not creating a derivative work that requires the copyright owner’s permission. This broad prohibition may be more important in Europe, where there has been longstanding protection of authors’ moral rights. We can understand an author’s concerns about her words being altered such that the intended meaning is lost.
PUBLISHER’S UNDERTAKINGS
The Publisher warrants to the Licensee that the Licensed Materials used as contemplated by this License do not infringe the copyright or any other proprietary or intellectual property rights of any person. The Publisher shall indemnify and hold the Licensee harmless from and against any loss, damage, costs, liability and expenses (including reasonable legal and professional fees) arising out of any legal action taken against the Licensee claiming actual or alleged infringement of such rights. This indemnity shall survive the termination of this License for any reason. This indemnity shall not apply if the Licensee has amended the Licensed Materials in any way not permitted by this License.
* Comment: This “hold harmless” ciause is important for the licensee. Indemnification means that the licensor will protect or compensate the library if the database contains infringing content.
The Publisher shall:
make the Licensed Materials available to the Licensee from the Server via the Internet access to which is authenticated by [Internet Protocol Address] [Athens] [Shibboleth] as specified in Schedule 1. The Publisher will notify the Licensee at least [ninety (90)] [sixty (60)] days in advance of any anticipated specification change applicable to the Licensed Materials. If the changes render the Licensed Materials less useful in a material respect to the Licensee, the Licensee may within thirty days of such notice treat such changes as a breach of this License under clause 10.1.2 and 10.4.
* Comment: This important clause requires the publisher to notify you of changes well in advance, and permits the library to terminate the contract if the changes make the licensed materials less useful. The more notice you have, the better.
​ use reasonable endeavours to make available the electronic copy of each journal issue in the Licensed Materials [not less than {XX} days before the date] [not later than the day] of publication of the printed version. In the event that for technical reasons this is not possible for any particular journal, as a matter of course, such journal shall be identified at the time of licensing, together with such reasons.
provide the Licensee, within 30 days of the date of this License, with information sufficient to enable the Licensee to access the Licensed Material.
use reasonable endeavours to ensure that the Server has adequate capacity and bandwidth to support the usage of the Licensee at a level commensurate with the standards of availability for information services of similar scope operating via the World Wide Web, as such standards evolve from time to time over the term of this License.
use reasonable endeavours to make the Licensed Materials available to the Licensee and to Authorized Users at all times and on a twenty-four hour basis, save for routine maintenance (which shall be notified to the Licensee in advance wherever possible), and to restore access to the Licensed Materials as soon as possible in the event of an interruption or suspension of the service.
* Comment: These are all good terms that help guarantee the library effective access to the database.
[Where the Licensed Materials shall not be available to the Licensee for more than thirty (30) consecutive days, the Publisher shall refund to the Licensee a proportion of the Fee prorated to the period of such unavailability within the Subscription Period to which the Fee relates.]
The Publisher reserves the right at any time to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. The Publisher shall give written notice to the Licensee of such withdrawal. If the withdrawal [represents more than ten per cent (10%) of the book, journal or other publication in which it appeared, the Publisher shall refund to the Licensee that part of the Fee that is in proportion to the amount of material withdrawn and the remaining un-expired portion of the Subscrip​ tion Period] [results in the Licensed Materials being no longer useful to the Licensee, the Licensee may within thirty days of such notice treat such changes as a breach of this License under clause 10.1.2 and 10.4].
* Comment: Vendors often do not own the content, but rather license it from other authors or publishers. A vendor may lose permission to publish or distribute the works, and thus must remove the content from the database. This helpful clause provides for refunds to the library for withdrawn materials. The bracketed text, which we like, permits the library to treat withdrawals as a breach if the remainder is “no longer useful.”
[The Publisher undertakes to [use reasonable endeavours to] provide or to make arrangements for a third party to provide an archive of the Licensed Materials for the purposes of long term preservation of the Licensed Materials, and to permit Authorized Users to access such archive after termination of this License.]
* Comment: This is a helpful clause, but language like “undertakes to provide” or “undertakes to use reasonable endeavours to provide” is not the same as saying “the publisher shall provide.”
Collection and analysis of data on the usage of the Licensed Materials will assist both the Publisher and the Licensee to understand the impact of this License. The Publisher shall provide to the Licensee or facilitate the collection and provision to the Licensee and the Publisher by the Licensee of such usage data on the number [of titles] [of abstracts and] of articles downloaded, by journal title, on [a monthly] [a quarterly] [an annual] basis for the Publisher’s and the Licensee’s private internal use only. Such usage data shall be compiled in a manner consistent with applicable privacy [and data protection] laws [and as may be agreed between the parties from time to time], and the anonymity of individual users and the confidentiality of their searches shall be fully protected. In the case that the Publisher assigns its rights to another party under clause 11.3, the Licensee may at its discretion require the assignee either to keep such usage information confidential or to destroy it.
* Comment: Collecting data helps you know how much the database is being used, which will help you determine whether to renew the contract. You may want monthly reports, but quarterly ones should suffice. The license must preserve the privacy of users and comply with applicable laws.
The Licensee shall:
use reasonable endeavours to ensure that all Authorized Users are aware of the importance of respecting the intellectual property rights in the Licensed Materials and of the terms and conditions of this License, and use reasonable endeavours to notify Authorized Users of the terms and conditions of this License and take steps to protect the Licensed Materials from unauthorized use or other breach of this License;
use reasonable endeavours to monitor compliance and immediately upon becoming aware of any unauthorized use or other breach, inform the Publisher and take all reasonable and appropriate steps, including disciplinary action, both to ensure that such activity ceases and to prevent any recurrence;
Comment: Librarians should monitor the use of licensed materials, but we would not agree to inform the publisher of unauthorized uses. The library should decide the reasonable and appropriate steps it will take, not the vendor.
[{SUBJECT TO APPLICABLE LAW,} THE LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD THE PUBLISHER HARMLESS FROM AND AGAINST ANY LOSS, DAMAGE, COSTS, LIABILITY AND EXPENSES (INCLUDING REASONABLE LEGAL AND PROFESSIONAL FEES) ARISING OUT OF ANY CLAIM OR LEGAL ACTION TAKEN AGAINST THE PUBLISHER RELATED TO OR IN ANY WAY. CONNECTED WITH: ANY USE OF THE LICENSED MATERIALS BY THE LICENSEE OR AUTHORIZED USERS OR ANY FAILURE BY THE LICENSEE TO PERFORM ITS OBLIGATIONS IN RELATION’ TO THIS LICENSE, PROVIDED THAT] NOTHING IN THIS LICENSE SHALL MAKE THE LICENSEE LIABLE FOR BREACH OF THE TERMS OF THE LICENSE BY ANY AUTHORIZED USER PROVIDED THAT THE LICENSEE DID NOT CAUSE, KNOWINGLY ASSIST OR CONDONE THE CONTINUATION OF SUCH BREACH TO CONTINUE AFTER BECOMING AWARE OF AN ACTUAL BREACH HAVING OCCURRED.
* Comment: The library shouldn’t agree to indemnify the licensor for breaches by any users. Eliminate anything like this bracketed language.
* We do like the language relieving the library of liability for breaches by its users unless the library knowingly assisted or condoned the continuation of the breach.
TERM AND TERMINATION
In addition to automatic termination (unless renewed) under clause 2.2, this License shall be terminated:
if the Licensee wilfully defaults in making payment of the Fee as provided in this License and fails to remedy such default within [thirty (30)] [sixty (60)] days of notification in writing by the Publisher;
* Comment: Sixty days is better than thirty, and insist on written notice. Sometimes your parent institution may be a little slow paying its bills.
if the Publisher commits a material or persistent breach of any term of this License and fails to remedy the breach (if capable of remedy) within [thirty (30)] [sixty (60)] days of notification in writing by the Licensee;
* Comment: Breaches can go both ways. Make sure you notify the vendor promptly—and repeatedly—of any problems.
if the Licensee commits a wilful material and persistent breach of the Publisher’s copyright or other intellectual property rights or of the provisions of clause 3 in respect of usage rights or of clause 6 in respect of prohibited uses;
* Comment: Make sure you get written notice of any suspected breaches of the agreement or copyright violations, and time to respond and remedy the problem. Think about how, and who, decides if there has been a wilful material and persistent breach.
if either party becomes insolvent or becomes subject to receivership, liquidation or similar external administration.
* Comment: This type of “ipso facto” clause may not be enforceable in bankruptcy.
GENERAL
This License constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter of this License, whether oral or written. ​ Alterations to this License and to the Schedules to this License are only valid if they are recorded in writing and signed by both parties.
* Comment: This language prevents the vendor from modifying the contract simply by sending the library an e-mail or posting a notice on its website. Changes in the contract should be in writing and signed by both parties.
This License may not be assigned by either party to any other person or organisation, nor may either party sub-contract any of its obligations, except as provided in this License in respect of the management and operation of the Server, without the prior written consent of the other party, which consent shall not unreasonably be withheld.
If rights in all or any part of the Licensed Materials are assigned to another publisher, the Publisher shall [use its best endeavours to] ensure that the terms and conditions of this License are maintained.
* Comment: If the vendor assigns rights to another publisher, the assignee should be bound by the agreement. If the new publisher cannot comply with the contractual terms or conditions, the library has a right to renegotiate the contract, or terminate it and get a pro rata refund of the contract price.
Any notices to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post to the address of the addressee as set out in this License or to such other address as notified by either party to the other as its address for service of notices. All such notices shall be deemed to have been received within 14 days of posting.
* Comment: We're not sure you need registered mail. E-mail and first-class mail for notices is fine.
[This License shall be governed by and construed in accordance with {jurisdiction} law; the parties irrevocably agree that any dispute arising out of or in connection with this License will be subject to and within the jurisdiction of the courts of {jurisdiction}.]
* Comment: If you are at a state-funded institution, your procurement office probably will require you to insert your state’s name here.
The Bottom Line on Licenses: Read a license carefully, and then read it again. If you do not like what you see, write in the changes (deletions, ​additions, modifications) and initial them. Send two signed copies to the licensor, and ask the licensor to send back to you with his or her signature.
Licensors sometimes will not send back the amended agreement. Therefore, in your cover letter and on the agreement itself, write that if the licensor provides the product after you mailed the amended agreement, you understand that the licensor has assented to your terms.
Permissions
Up to this point, when we have discussed licenses, we have meant contracts with publishers for journal and database subscriptions. However, "license" is also another name for permission from a copyright owner. If you want to use a work in a way that requires permission, your first job is to contact the right person who can grant permission.
Most copyrighted works have copyright notices identifying the copyright owner. Search online for the copyright owner's contact information. If you find the owner, send them a letter explaining what you want to use and how you plan to use it. We provide a sample permission letter in Appendix I.
If you cannot find the owner mentioned in the copyright notice or she doesn't respond, next try contacting the publisher. The publisher might have current contact information for the author or have the power to grant you permission.
A third option is to check with collective licensing agencies. These are private groups that gather licensing privileges from authors and publishers. They grant permissions on behalf of the copyright owners and distribute royalty payments. Collective licensing agencies provide a more centralized and convenient means of getting permission, but they exist to gather money for their members, so they virtually always charge fees for permission.
Collective licensing agencies tend to be organized by industry. The three major music agencies are ASCAP, BMI, and SESAC. Each ​agency has a different portfolio of artists and publishers it represents, so if one agency can't give permission for the song you want to use, check with the others. The Motion Picture Licensing Corporation and Swank Motion Pictures handle permissions for a large number of film and television producers. The Copyright Clearance Center grants licenses for print works, such as books, journals, and newspapers. Collective licensing agencies have the ability to grant permissions for a lot of copyrighted material, but no agency has everything, so no guarantees.
Photographs can be even trickier, because there is not a collective licensing agency for photographers. Instead, a number of stock photography companies handle permissions for many images, or photographers manage permissions themselves. Corbis, Getty, and Jupiter Images are major places to check for images that can be licensed.
Tracking copyrights is sometimes complicated. For instance, you might think the publisher is the copyright owner, but it will direct you to another copyright owner or to a collective licensing agency. Give yourself as much time as you can to obtain permission. It's great if the owner replies immediately, but your request may take time to process and will require patience.
Once contacted, some copyright owners will give permission for free, while others will require a fee or seek to impose conditions on your use. Good faith negotiation will probably result in a satisfactory outcome, but some license fees will be too high for you, or the owner simply won't want her work used a particular way. If you can't get permission and no copyright exceptions apply, then you will just have to find an alternative to the material you wanted to use.
* ↑ 17 U.S.C. § 102(a) (2006) (emphasis added).
* ↑ 17 U.S.C. § 105 (2006).
* ↑ H.R. Rep. No. 94-1476, at 132.
* ↑ American Meteorological Society, Journals Online Subscription Agreement, available at http://www.ametsoc.org/pubs/subscribe/elicense.pdf. © American Meteorological Society. Reprinted with permission.
* ↑ http://www.licensingmodels.org/SingleAcademicInstitutionLicense.html. This license has been placed in the public domain by its authors. Its authors are from the United Kingdom, so it follows British spelling conventions.
* ↑ A good list of collective licensing agencies is available at http://copyright.columbia.edu/copyright/permissions/collective-licensing-agencies/.
* ↑ http://www.ascap.com/
* ↑ http://www.bmi.com/
* ↑ http://www.sesac.com/
* ↑ http://www.mple.org/index/worldwide
* ↑ http://swank.com/
* ↑ http://www.copyright.com/
* ↑ http://www.corbisimages.com/
* ↑ http://www.gettyimages.com/
* ↑ http://www.jupiterimages.com/