Diane Grover LIS 550 Fall 2010 Licensing for Electronic Resources

Licensing: Crash Course in the Basics Why? What is a license? Typical elements in a license License “terms of death” Reviewing a real license License support

Licensing WHY?

What is a license? Written agreement between 2 or more parties A grant of rights Based in contract law Copyright and Fair Use Wide variation Negotiable

If you remember only one thing… Contract law overrides copyright and fair use

Typical license elements Parties: licensee and licensor Description of product offered Definitions Authorized users Authorized site Each party agrees Warranties Terms of Use Restrictions Confidentiality Liability Force Majeure Term and termination Perpetual access Governing law Legalese: entire agreement, severability, breach Notices Signatures, dates

Typical license elements Parties: licensee and licensor Description of product offered Definitions Authorized users Authorized site Each party agrees Warranties Terms of Use Restrictions Confidentiality Liability Force Majeure Term and termination Perpetual access Governing law Legalese: entire agreement, severability, breach Notices Signatures, dates

Additional elements Called: “amendments”, “exhibits”, “addendum”, etc. “Business agreement”: price, price increases, cancellations restrictions, etc. For consortium, may list each library IP address ranges ETC

Reading/evaluating a license Identify problematic terms Note omissions Assess risk Develop a negotiation strategy

Six “terms of death” 1. Indemnification: don’t indemnify a provider They should indemnify you 2. Don’t take responsibility for user behavior 3. Unreasonable termination 4. Jurisdiction: governing law and venue 5. Disclaimer of warranty 6. Alteration of terms without notification

Second tier issues Perpetual access Course reserves, coursepacks Scholarly sharing Definition of a site (geographical restrictions) ILL and document delivery rights Record keeping required for ILL User confidentiality Disability access

Omissions Use a checklist Be sure all important points covered Don’t trust verbal promises; get it in writing

General Principle: Evaluate Risk Probability of problems User behavior Vendor/publisher behavior Penalties/consequences For the user For the library For the publisher/vendor Likelihood of penalties being invoked

Negotiation principles Understand the importance of the resource to your collection and/or users Seek expert advice: peers, managers, attorneys It’s not personal! (“my state law requires”, “my library is not allowed to”, my manager/attorney won’t allow me to agree to”) Play fair, play nice, don’t burn bridges Know who has final authority/responsibility Know when to walk (call it “take a break” and leave the door open to the future)

Successful negotiation: now what? Issues in managing license information Interpretation of unclear or missing terms Record keeping Legal Practical Communicating terms to staff Communicating terms to users Responding to unauthorized use allegations Updating/re-negotiation

Trends and Tools Electronic resource management (ERM) and license mapping Consortia NISO SERU ONIX-PL Vendor “license banks”

Resources Electronic Resource Management Initiative s/dlf102 s/dlf102 LibLicense: listserv and resources: Publishers’ model licenses California Digital Library: NISO SERU ONIX-PL

Practice License Read Rick Anderson’s Chapter 7 on reserve. Read sample license agreement linked from the course page. Post your thoughts on the following questions: Identify “terms of death” as described in Rick Anderson’s work. Identify other issues you think would be of concern to institutions such as the UW What terms did you expect to see are missing? What other questions do you have about this agreement?

Thank You!