Electronic Resources from Acquisition to Access: Licensing Content for Your Library Tracy L. Thompson Executive Director NELLCO

Who is Licensing Content? A world of experience; let’s learn from each other Libraries –Academic – 20 (of 39) –Private/Firm - 12 –SCCLL – 2 –Government - 2 –Special - 2 Consortia –International Coalition of Library Consortia (ICOLC) Users – click-throughs/shrink-wraps Publisher/Vendors We all have the same goal: fair and reasonable terms for access to electronic content

Love it or Hate it? 13 of 23 respondents don’t enjoy the process Why? –Time consuming –Not sure I’m getting a good deal –Vendor/publisher “barely understands what a license agreement is” –Vendor/publisher can’t provide an agreement for review –Vendors/publishers trying to restrict fair use –Vendors/publishers charging too much for access

Biggest obstacles? Just getting a license agreement from the vendor to begin with! Disparity of bargaining power Inflexibility on part of vendor/won’t customize LA Knowing what to look for Secrecy of $$$ Fitting LA to needs of library Print tie-in requirements

Why are we licensing? So many licenses, so little time...And why are we spending so much time at this when it never gets litigated anyway? Provide clarity – rights and responsibilities of parties and patrons/users Protect interests –Users’ –Libraries’ –Vendors’

What are we licensing? Many of us are involved in licensing from both sides of the fence… Content we acquire –For use/access – annual subscriptions –For ownership – content purchase Content we create – Open Access? –Repositories –Creative CommonsCreative Commons

Some Guidelines Exist... AALL Licensing Principles for Electronic Resources (37)AALL Licensing Principles for Electronic Resources –Developed in 1997 –Revised in 2004 (special committee appointed by Carol Nicholson in 2002) –Recommended web-based registry for vendors Committee MembersCommittee Members –James Duggan –James Duggan Board Liaison , (Southern Illinois University); –Karl T. Gruben –Karl T. Gruben Board Liaison , (Squire, Sanders & Dempsey LLP); –Margaret Maes Axtmann –Margaret Maes Axtmann (University of St. Thomas); –Bennie Braxton –Bennie Braxton (Sughrue, Mion, Zinn,Macpeak & Seas, PLLC); –Kevin L. Butterfield –Kevin L. Butterfield (University of Illinois – Urbana Champaign); –Mary F. Miller –Mary F. Miller (SUNY Buffalo); –Miriam Childs –Miriam Childs (Law Library of Louisiana); –Lisa Smith-Butler –Lisa Smith-Butler (Nova Southeastern University); –Lorna Tang –Lorna Tang (University of Chicago).

More Guidelines Yale’s LIBLICENSE: Licensing Digital Information California Digital Library Licensing Guidelines IFLA Licensing Guidelines ICOLC Documents (Google ICOLC) –Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information –Privacy Guidelines for Electronic Resources Vendors –Guidelines for Statistical Measures of Usage of Web- Based Information Resources

But use existing guidelines to develop your own! In most cases there will be no cookie cutter solution. Be sure that everyone involved in the process for your institution is aware of your in-house guidelines.

Cliff Notes Two basic premises about the process of licensing from the AALL Principles. 1. A license agreement is a contract between the licensor and the licensee for purchase or use of an information resource by the licensee’s authorized users. 2. The practice of licensing electronic resources should be accomplished in good faith by all parties. It is important that the process be carried out as openly as possible to achieve fairness and to develop best practices. A confidentiality or nondisclosure agreement should not be a prerequisite to a license agreement.

More Cliff Notes It can be fun! It’s ALL negotiable (no matter what they tell you) Whenever possible, start with YOUR standard license, not theirs (30 of 32 respondents have no standard license) Decide in advance if the content is a ‘must have’ - if so, can you get it elsewhere? Do your research! Know your dealbreakers (27 of 32 don’t) Be prepared and be prepared to walk away

Key components of a license agreement Parties –Institution? Users? Term (dates) –effective date –Renewal - automatic? –notice requirement for renewal or termination –early termination - penalties? credit? refund? Content –Exactly what content is the subject of the terms and conditions? Be aware of enhanced functionality or additional content not included. Fees/increases –Specify the subscription rate (in appendix?), terms of payment, caps on increases

Key components of a license agreement (cont’d.) Authorized users – –Current students, faculty, staff (adjuncts? Part- timers?), consultants, independent contractors, associates, summer associates, named users only? –U-wide? (building good will) –Alums? (do you serve this population? Proxy?) –Walk-ins? Public? –Remote users? Is usage limited or unlimited?

Key components of a license agreement (cont’d.) Authorized Use - From the AALL Principles –Authorized uses/restrictions - A license agreement should recognize and not restrict, abrogate or circumvent the rights of the licensee or its user community permitted under copyright law, including but not limited to the fair use provisions of Section 107 of the U.S Copyright Act (17 U.S.C 107) and the interlibrary loan provisions of Section 108 of the U.S. Copyright Act (17 U.S.C. 108). Be sure to enumerate your intended uses –ILL? –Internal research in the course of business? –Course Packs? –Backup copy? –Distance learning? –E-reserve? –Patent applications?

Key components of a license agreement (cont’d.) Authentication – Be sure provider can successfully manage the promised authentication method –Username/password –IP –Local authentication methods Performance obligations –Licensee – make reasonable efforts to inform authorized users of t&c –Licensor – provide adequate technology infrastructure to support and serve content, server redundancy, minimize downtime, etc. –Mutual – privacy, security protocols, new authentication methods Perpetual Access/Archive – contrast backup copy

Key components of a license agreement (cont’d.) Usage Statistics – how will they be provided? Are they COUNTER compliant? Warranties –Licensor – owner or rights-holder of licensed content, non-infringement –Licensee – all reasonable efforts to prevent unauthorized use Indemnities - agreement to insure or otherwise defend another party against any claims by third parties resulting from performance under the agreement Choice of law/forum – gov’t. institutions may be restricted from entering into agreements that stipulate ‘foreign’ law/forum Dispute resolution

Issue spotting exercise Groups of 3 or 4 15 minutes to highlight problem areas and recommend changes Regroup and review

Q&A and Wrap up Recommended online course by Lesley Ellen Harris ($129.00) Sept. 5-Nov. 4 –Digital Licensing Online, a 9 week course with 27 e- lessons. For further details or to register see

THANK YOU! Tracy L. Thompson