Proactive E-Resource Licensing: Educating Ourselves and Our Vendors Through Negotiation Richard Kearney Electronic Resources Librarian William Paterson University VALE / NJ ACRL / NJLA CUS Seventeenth Annual Users' Conference Piscataway, NJ January 15, 2016

Our Library Environment Today  Not only is more of our collection in electronic/online format, but more of that content is licensed rather than purchased, often despite our best efforts (“…but we want to buy it!”), and even purchased resources are combined with licenses in e-world  Licensing has become a condition of access to many of the resources we need to function  Who does it? Who should do it?

Accepting the Challenge  “But I’m not a lawyer!” (or maybe you are)  License review is time-consuming and often tedious  We experience a lot of uncertainty in license review, especially if we have little basis for comparison – “Are these good terms?”  The vendor sales staff are rarely knowledgeable about these issues, serving primarily as intermediaries for their legal departments (with which we may have little direct communication)

Our Strategic Position Library Users Libraries Consortial Agents? Other Content Providers? Publishers?Vendors The License

What We Seek  Fair, sustainable, and clear terms for access to important content, which will (or should!) usually entail retaining all of the use rights generally enjoyed under fair use doctrine for copyrighted materials, and no unreasonable restrictions on use  Ensuring that the needs of our users are taken into account, including the ways in which they tend to use information  Ensuring that the library’s interests are protected, recognizing that licenses are contracts

Licensing Issues Play Out in Day-to-Day Ways. What is this “user limit Exceeded” message?

From Passive to Proactive Passive Proactive Key Library Staff Not in the Loop Starting from Vendor License Cursory / Minimal Review of Terms Little or No Negotiation Starting from Your Preferred Terms or Model License Negotiate, Negotiate, Negotiate … to Something Acceptable Key Staff Integrated in Process A Thorough Review of the License Terms

Help is Available / You Are Not Alone / Mistakes are Not the End of the World  The LIBLICENSE Project (Center for Research Libraries) - In addition to offering an excellent glossary and a guide to key licensing terms and descriptions, with annotated sample clauses, the LIBLICENSE Project is best known for its Model License Agreement (revised in 2014), software to create your own model licenses, and the LibLicense-L Discussion Forum.LIBLICENSE ProjectModel License Agreement softwareLibLicense-L Discussion Forum  Procurement Toolkit and Code of Best Practices For Licensing Electronic Resources (American Association of Law Libraries) – Updated in 2013, this offers another very thorough treatment of licensing issues applicable to libraries and includes a very helpful “Checklist” for licensing e-resources. Procurement Toolkit and Code of Best Practices For Licensing Electronic ResourcesChecklist  The NorthEast Research Libraries Consortium – The point eResources Negotiating Principles for Vendors and Model License are both practical tools that can easily be adapted for individual libraries.eResources Negotiating Principles for VendorsModel License  VALE Electronic Licensing Agreements Preferred Terms – First approved in 2003, this document has been revised four times (most recently in 2012) and illustrates some principles of consortial licensing. VALE Electronic Licensing Agreements Preferred Terms  California Digital Library Licensing Toolkit – Another good example of consortial licensing processes and principles; see especially the 5-page “Checklist of Points to be Addressed in a California Digital Library License Agreement” California Digital Library Licensing ToolkitChecklist of Points to be Addressed in a California Digital Library License Agreement

Adopt Your Licensing Posture  Most of the licensing aids/resources will need to be customized to your situation  Develop your own Guidelines / Checklist / Model License through consultation with interested parties (especially those who will use and manage the content) – these documents don’t have to cover everything, and they can always be changed as you learn more  Do as much advance research as you can about the product you want, any comparable alternatives that may exist, and the vendor with which you will work – this will reduce uncertainty and stress  If there are terms you can’t accept, try to know what these are in advance  While there are always preferred timetables and deadlines, avoid rushing the license review and negotiation process and don’t feel pressured to do so – a good deal is usually worth the time and a bad deal won’t last anyway

Adopt Your Licensing Posture (cont.)  Try to start with your own license terms when beginning the process with vendors – this can save time, especially with routine issues  While many licenses give the appearance of immovable objects, and vendors may tell you that “terms and conditions” are simply to be accepted, in reality all clauses in a license can be negotiated – because a license is a private contract  If – as is often the case – someone else within your institution needs to review, sign off on, or sign a license, this is a good opportunity to pass along your informed comments and recommendations from the library’s perspective  If you reach the end of a negotiation process and find there are still unacceptable clauses in the license, be willing to walk away

Anatomy of a License: Major Components  Parties to an Agreement  Usually your institution, and a single vendor, as defined in the license, although there are underlying complexities  Content Being Licensed  This should be reasonably well-defined and specific in the license (sometimes detailed in an appendix or schedule, as with some journal or book collections); some complex products may include a combination of purchased, subscribed, and other content, along with a proprietary platform/interface, the use of which is also subject to license terms  Fees  Initial fees should be indicated in the license, and libraries should request a period of at least 60 days prior to renewal to be notified of a price increase

Anatomy of a License: Major Components  Authorized Users  Should be specified to remove ambiguity: students, faculty, staff, other valid ID holders (e.g., visiting scholars), walk-ins, and others as appropriate  Authorized Uses (A good place to be very proactive!)  Display, download, digitally copy, print  Fulfill inter-library loan requests consistent with copyright law  Course reserves, course-packs, electronic links  Education, teaching, research  Scholarly sharing, scholarly citation, bibliographic citation  Text and data mining  Caching and backup copies  AND … no diminution of rights such as those exercised under copyright law (Section 107 of the U.S. Copyright Act) !!

Anatomy of a License: Major Components  Delivery and Access/Authentication  Should be compatible with the authentication system used at your institution; may need to be specified in a separate appendix  Use Restrictions  No access by unauthorized users (knowingly or intentionally permitted)  No modification of licensed materials  No removal of copyright or trademark notice  No commercial use (e.g., resale of content)  dfdf

Anatomy of a License: Major Components  Performance Obligations of the Licensor (be proactive!)  Specification of a date when licensed materials are initially available  Making materials available through library's discovery service (think about it!)  Provision of a persistent linking mechanism  Online terms and conditions cannot be different from those in the agreement; authorized users are not parties to the agreement and will not be made so by "click-through" notifications  Provision of documentation to support use, technical and customer service support, training to library staff  Provision of updates  Quality of service assurance (maximum uptime, notification of scheduled downtime)  Problems with licensed materials: if after notification the licensor fails to redress the problem within a specified time, prorated fees reimbursement will be required  Notification of modifications of licensed materials (minimum of 30 days, especially for content that is to be withdrawn)  Provision of an itemized holdings list (especially important for dynamic subscription content where other library systems may need to be updated)  Usage statistics - should specify frequency, and request conformity with the COUNTER standard  Privacy protection (no distribution of usage data or personal information to third parties)

Anatomy of a License: Major Components  Performance Obligations of the Licensee  We make reasonable efforts to notify authorized users of the terms and conditions of use  We make reasonable efforts to restrict access to authorized users  We maintain the confidentiality of access passwords (when these are required at all)  Mutual Performance Obligations  We notify each other when unauthorized use is discovered

Anatomy of a License: Major Components  Term, Renewal, Termination  Agreement term may be specified in the license  Agreement is renewable at the end of an annual term unless parties notify of intent to cancel 30 days before expiration  Should include a 60-days period from date of notification of a price increase to allow licensee to notify licensor of an intent to cancel or renegotiate  Early termination for financial hardship (usually a component of multiyear agreements)  Termination for breach (should include reasonable rectification provisions)  Refunds (should be given for all early terminations save for those resulting from a material breach by licensee)  Dispute Resolution  Should require good faith attempts to resolve any dispute while both parties continue to carry out their respective obligations

Anatomy of a License: Major Components  Perpetual Access and Archives  Perpetual license granted, with access surviving end of agreement; ongoing access ensured by:  Provision of an archival copy of licensed content by Licensor  Permitted use of third party archiving services to ensure ongoing access  Warranties and Indemnification  Licensor has all necessary rights to the licensed content for the uses specified and use does not infringe the rights of any other party; licensor will indemnify licensee against any such claims  Governing Law  Should be a mutually convenient venue, or for public institutions usually the state in which the library resides

Some Things to Avoid  “Shrink-Wrap” licenses of any kind  Example #1 Example #1  Example #2 Example #2  Clauses indicating Licensor can make changes to a license while an agreement is in force without written notification to Licensee  Extensive liability limitations for vendors  Clauses requiring that libraries be responsible for user behavior  Burdensome indemnification requirements for Licensees  Example Example

Beyond Licenses?  The Shared Electronic Resource Understanding (SERU) is a 2012 NISO Recommended Practice which can take the place of a license if the parties agree to use it Shared Electronic Resource Understanding  The SERU contains a relatively small number of “statements of common understandings” for the acquisition and use of electronic resources, with usage under copyright law constituting the general framework for its provisions  Less detailed and comprehensive than either party may wish at times, it nevertheless offers a means of aligning private agreements with public law in the area of information use

A Few Good Books  Harris, Lesley Ellen. Licensing Digital Content: A Practical Guide for Librarians, Second Edition (Chicago: American Library Association, 2009).Licensing Digital Content: A Practical Guide for Librarians  Lipinski, Tomas A. The Librarian's Legal Companion for Licensing Information Resources and Services (Chicago: Neal-Schuman, An imprint of the American Library Association, 2013).The Librarian's Legal Companion for Licensing Information Resources and Services

Thank you! Richard Kearney Electronic Resources Librarian William Paterson University