1. Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

2. General Characteristics of License Agreements  Usually prepared by the publisher  Provisions favor the publisher  License agreements are not uniform  “Legalease”

3. Licensing Principles  IFLA Licensing Principles www.ifla.org/V/ebpb/copy.htm  Statement of Licensing Principles www.arl.orgs/scomm/licensing/principles.html  ICOLC Licensing Principles www.library.yale.edu/consortia/statement.html

4. Model Licensing Agreements  “Big Easy” License www.licensingmodels.com  LibLicense Standard Agreement www.library.yale.edu/~llicense/standlicagree.html  NESLI Agreement www.nesli.ac.uk/ModelLicence8a.html

5. Negotiation Goals  Know the facts how information is used need for information within the organization  View negotiation as a partnership/ win-win situation  Know your “walk away” price

6. Definitions  Separate section of license agreement or terms defined within text  Capitalized term indicates it is defined  Important definitions Licensed Material Authorized User Use / Prohibited Use

7. Users Academic setting  Current faculty, staff and students  Walk-in patrons  Distance education students  On multiple campuses Law Firm setting  Attorneys and paralegals  Professional staff  Support staff  In multiple offices

8. Access  IP address Campus wide building specific multiple offices/ campuses  Passwords End users Librarian/ intermediary

9. Use / Prohibited Use  Non-commercial use only in an academic setting  No systematic printing of content  No electronic transmission of content (certain publishers)

10. Definition of Fair Use  First developed at common law in 19 th century  Codified in Section 107, Copyright Act Purpose or character of use Nature of copyrighted work Amount or substantiality of portion used Effect of use on the potential market for the copyrighted work

11. Waiver of Fair Use  Provisions of license agreement can waive Fair Use and other rights under copyright law  Review Use and Prohibited Use section closely

12. Price  Fixed fee for unlimited usage of content  Selected databases covered by fixed fee  Per minute fee for access  Printing charges Remember: Hourly usage this year affects the subscription fee for the next year

13. Renewal  Duration of license – one year, multiple years  Avoid automatic renewal  Insist on prior written notice of renewal  Allow sufficient time prior to renewal for renegotiation

14. Indemnification  Buyer of information should not indemnify the publisher for anything  Public institutions are often limited by law from indemnifying third parties  Publisher should indemnify Buyer against: copyright infringement product defects

15. Indemnification – Other Concerns  Shortened statute of limitations general contract claim – 3 years  Monetary limitation on recovery  Indemnified party – how defined  Procedure written claim usually required to whom notice is delivered

16. Warranty  Publisher should warrant that: it has the legal right to license the content it is not infringing the copyright of others product is free from defects

17. Disclaimer of Warranties  Restriction on special or consequential damages is typical  Disclaimer of warranty of merchantability or fitness for a particular purpose is typical  If product fails to perform, publisher should: replace, repair promptly, or refund the license fee.

18. Governing Law  Determine any institutional policy government agencies often can only sign contracts governed by that state’s law  Omit this clause and postpone the battle under UCC, “reasonable relation” standard  Should decide on the governing law because a few states have enacted UCITA

19. UCITA  Libraries should avoid application of UCITA  Significant provisions transfer of title does not equal transfer of ownership aggressive contract formation scope of use is narrowly construed electronic self-help email notice legally effective

20. Authority to Sign  Who has authority to sign the license?  College/ university University Librarian General Counsel  Law firm Managing partner Firm Administrator  Bank/ corporation Officer – at what level – VP, SVP

21. Licensing Resources  LibLicense Project, Yale University www.library.yale.edu/~llicense/  University of Texas System Counsel www.utsystem.edu/ogc/intellectualproperty/  Association of Research Libraries www.arl.org/scomm/licensing/