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Fundamentals of e-resource licensing

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  • Once the work is lawfully sold or transferred, the copyright owner’s interest in the object is exhausted.
  • Many contracts only include rights for teaching and research, but copyright law also includes usage rights for criticism, comment, and news reporting.
  • Transcript

    • 1. N A S I G 2 8 T H A N N U A L C O N F E R E N C EJ U N E 9 , 2 0 1 3FUNDAMENTALS OFE-RESOURCE LICENSING
    • 2. OVERVIEW• Why licensing is important• Review laws that effect use of content• Getting started working with license agreements• Anatomy of a license agreement• Focus on authorized use clauses• Draw upon Florida Virtual Campus Guidelines for E-ResourceLicense Agreements• Emerging licensing issues• Negotiation tips
    • 3. WHY IS LICENSING IMPORTANT?• Rights to use content in the print environmentlargely governed by US Copyright Law• Rights to use content in the online environmentlargely governed by Contract Law though the useof license agreements• In print environment, libraries generally purchasematerials, with rights implicit to that purchase• In electronic environment, libraries typicallylicense, or lease access to content
    • 4. COPYRIGHT LAW• Copyright Law grants a copyright owner distributionand reproduction rights, with important exceptions:• First-sale doctrine: has to do with distribution rights• Allows libraries to lend, sell, discard print materials• Fair-use: has to do with reproduction rights• Provides for use in criticism, comment, newsreporting, teaching, scholarship, and research.• Four factors of consideration: purpose, nature of copyrightedwork, amount of content used, effect upon market• Educational & library exceptionsInterlibrary loan, use in course packs
    • 5. CONTRACT LAW• License Agreements for e-resources arecontracts, and thus governed by contract law• Contract terms take precedence over existing rightsand exceptions granted under Copyright Law• License Agreements can reduce existing rights ofcontent use• Careful construction of license agreements isessential to retain resource sharing and other rights
    • 6. GETTING STARTED IN LICENSING• Don’t be afraid/intimidated/hesitant• Develop local licensing guidelines (or steal liberallyfrom others!)• Ask for a copy of the agreement early in theacquisitions process; request an editable format ifnecessary• Use the “Track Changes” feature of your wordprocessing program to edit clauses, addingcomments as necessary• Assume your changes to the agreement will beaccepted by the vendor
    • 7. DEVELOP A NETWORK OF SUPPORT• Educate your colleagues• Purchasing Office• Experience dealing with contract and negotiating• Office of General Counsel• Provide expertise on legal issues such asindemnification, warranties, intellectual property issues• LIBLICENSE Listserv• Forum for discussing licensing issues, Q & A
    • 8. LEVELS OF COMPLEXITY• Licenses for aggregator databases, onlinereference resources, collection developmenttools, etc., tend to be brief and relativelystraightforward• E-journal package licenses, e-book licenses, tend tobe lengthier and more complex• interlibrary loan• course packs• archival and perpetual rights
    • 9. ANATOMY OF A LICENSE AGREEMENT• Description of “Licensor” and “Licensee”• Glossary of Terms• Authorized Users/Site• Authorized Uses• Licensor Responsibilities• Licensee Responsibilities• Mutual Obligations• Legal Issues (Governing Law, Indemnification, etc.)• Schedules and Amendments
    • 10. AUTHORIZED USERS• Defined by affiliation with university, not geographiclocation• Be as inclusive as possible (include contractors andaffiliated users)• Include provision for “walk-in” or “occasional” usersSample clause:“Authorized users include those persons affiliated withLicensee as students, faculty, staff, and independentcontractors of Licensee and its participatinginstitutions, regardless of the physical location of suchpersons, as well as walk-in users.”
    • 11. AUTHORIZED SITE• Should be defined at the institutional rather than librarylevel; not geographically based• Allow access by all users who have the right to accessthe institutional networkSample clause:“The authorized site consists of all geographic locationsand/or campuses of the institutions that are identified inthe agreement as Participating Institutions. All authorizedusers who have right of entry to the network are grantedaccess regardless of their physical location. This definitionmay include institutions with joint-use facilities that resideon a single network.”
    • 12. AUTHORIZED USES• Retention of all rights in accordance with U.S.Copyright LawSample clause:“The Publisher agrees to grant to the Consortium the non-exclusive andnon-transferrable right to give Authorized Users access to the LicensedMaterials via a Secure Network for the purposes ofresearch, teaching, and private study and other uses in accordancewith U.S. Copyright Law, including fair use and library reproductionrights.”OR“Nothing in this License shall in any way exclude, modify, or affect any ofthe Consortium’s or any Member’s statutory rights under nationalcopyright law.”
    • 13. INTERLIBRARY LOAN• Electronic ILL should be allowed• Remove references to:• the provision of data or statistics on ILL use,• type of library, and references to• geographic limitations to ILL (e.g., ILL to U.S. only)Sample clause:“Licensee may supply through interlibrary loan a copy ofan individual document being part of the LicensedMaterials by post, fax or secure electronic transmission forthe purposes of non-commercial use. Specifically, copiesmay be made in compliance with Section 108 of the U.S.Copyright Act.”
    • 14. INTERLIBRARY LOAN & E-BOOKS• ILL and e-books remains problematic• Loaning e-book chapters acceptable• Tools for loaning e-books under developmentSample clause:“Participating libraries may supply through InterlibraryLoan (ILL) chapters of e-book content by post, fax orsecure electronic transmission. Specifically, copiesmay be made in compliance with Section 108 of theU.S. Copyright Act and the limitation of the [Vendor]system.”
    • 15. USE IN COURSES, CMS• May be covered in a single clause or multipleclausesSample clause:“Licensee and Authorized Users may use areasonable portion of the Licensed Materials in thepreparation of course packs, course reserves or othereducational materials as well as within secure coursemanagement systems.”
    • 16. COMMERCIAL USE• When restrictions to commercial use appear, aclarifying clause should be presentSample clause:“For the avoidance of doubt, charging administrativefees to cover the costs of making permitted copies isnot prohibited. Use by the Consortium or a Memberor by an Authorized User of the Licensed Materials inthe course of research funded by a commercialorganization, is not Commercial Use.”
    • 17. PERPETUAL ACCESS• Perpetual rights vary by type of resource• Aggregator databases and other databases generallydon’t provide• E-journal contracts generally include perpetual accessrights• Perpetual access fees should be in the Fee ScheduleSample clause:“Perpetual access to the full text will be provided by thePublisher either by continuing online access via the Publisher’sserver or by supplying the electronic files to each subscribingInstitution in an electronic medium mutually agreed betweenthe parties. Continuing archival access and use is subject tothe terms and conditions of the expired License.”
    • 18. LICENSOR RESPONSIBILITIES• Privacy• Quality of service• Provision of usage statistics• Collection of usage statistics by third party• Provision for withdrawn materials
    • 19. LICENSEE RESPONSIBILITIES• Notifying users of license terms• Avoiding breach(Language requiring the licensee to do the aboveshould be edited to make reasonable efforts to)• Confidentiality – Florida Public Records Law• Discipline for breach – requirements should bestruck
    • 20. LEGAL ISSUES• Governing law – should be state of homeinstitution, or agreement should “remain silent”• Website user agreements – written agreementsupersedes online agreement• Indemnification• Warranties• Limitations of Liability(These are complex legal concepts; legal counselshould be sought for clauses of concern.)
    • 21. SCHEDULES AND ATTACHMENTS• Useful for laying out terms of the contract that don’tfit neatly into the main body of the contract• Commonly include:• Fee schedules• Details on participating libraries• Lists/descriptions of licensed content• Invoicing instructions• Contact information• Are referenced in the main body of the contract
    • 22. OTHER LICENSING ISSUES• Do I need a license?• SERU (Shared Electronic Resource Understanding)• MOOCs• ADA• Data Mining• ILL for E-books
    • 23. NEGOTIATION TIPS• Make sure all your constituents are on the same page.• Set your expectations high.• Know where your points of compromise are and usethem as necessary.• Refer back to established guidelines and practices.
    • 24. RESOURCESFLVC Licensing Guidelines, Version IIhttps://fclaweb.fcla.edu/uploads/FLVC_Licensing_Guidelines_Version_III_Final.pdfLIBLICENSE PROJECThttp://liblicense.crl.edu/U.S. Copyright Lawhttp://www.copyright.gov/title17/SERUhttp://www.niso.org/workrooms/seru
    • 25. QUESTIONS?Contact me:Claire DygertAssistant Director for Licensing and E-ResourcesFlorida Virtual Campus – Gainesvillecdygert@flvc.org352-392-9020 x307