Over the last year, 250 librarians have attended a two-day Licensing Workshop to learn about the legal side of contracts which are signed every day in universities to acquire access to electronic publications. Revised to one day and oriented towards publishers, this program focused on how to streamline the process for everyone by developing licenses that meet the needs of both parties.

The program was led by Trisha Davis, Head of Continuations Acquisitions Division at Ohio State University, Karen Hersey, Intellectual Property Counsel from Massachusetts Institute of Technology and Mary Case, Director of the Office of Scholarly Communication at the Association of Research Libraries (ARL). With ample time for questions and answers, participants had an opportunity to explore topics pertinent to their situations.

A thick packet of information included the recently distributed UK National Electronic Site License Initiative (NESLI) which was praised by Karen as being suitable. It is designed very efficiently with the rights and usage terms in the body of the agreement, while business terms that can change annually such as the materials to be licensed, their format and cost, appear in appended schedules.

Attendees also received a glossary of terms frequently used, a bibliography on licensing electronic resources, a statement of preferred practices from the International Coalition of Library Consortia (ICOLC), and a brochure published by ARL on Principles for Licensing Electronic Resources. Susan Hillson and Nancy Knight’s chart on pros and cons of various pricing models for electronic information, was included and their article "Electronic Pubs Pricing in the New Era" can be found in the September issue of Information Today.

SUMMARY

We are in a brave new world between contract and copyright law. Licenses offer the opportunity to negotiate the economic, technical, legal and market issues of today. This is more of an art than a science. Basic guidelines are to "ask questions" and "make the license work for you, not just you work for the contract". Licenses have the potential to balance and protect the needs of both parties.

LEGAL FOUNDATIONS

The license describes the rights granted to the library to use (not transfer ownership) of an information product. The five basic elements of contract law are the offer, the acceptance or counter offer, consideration (terms of use), meeting of the minds (agreement) and enforceability of terms.

Copyright law protects a bundle of five basic rights: to reproduce the work, to prepare derivative works (including abstracts), to distribute (disseminate copies), to display publicly and to perform publicly. Fair use allows for reproduction without permission for: criticism, comment, news reporting, teaching/scholarship, home use. The test of fair use is judged on four factors: commercial vs non-profit, number of copies, amount of material, and the effect on market potential.

Fundamental to achieving a balance, the parties must agree on: the number of users, the right to make copies, what is permissible for interlibrary loan, access by distance learners, modification for research and teaching.

USER AND ACCESS TERMS AND CONDITIONS

Multiple examples were given to illustrate what worked and where libraries had problems with terminology in the contract. At least one publisher who thought they had a model license recognized their wording and realized that it needed to be modified for more general acceptance. The language of licenses should always state "reasonable" rather than "all" as a good middle ground.

Product access as it is affected by technology (such as IP addresses) is defined. Users must be defined clearly and any prohibited categories (such as alumni) should be specified. It is better to state who is allowed to access the information by defining users, rather than by geographic terms (such as "site") which are not easily applied.

Rather than require a license for a trial, it was recommended to use a brief click-wrap license stating the limitation of liability. Authorized uses determine what is allowed in terms of copies in print or electronic form and for what applications, such as course reserves and interlibrary loan.

LEGAL TERMS AND CONDITIONS

"Identifying the parties" includes specifying who has the right to sign for an institution (can a faculty member commit the entire university or just their department?) "Warranties and disclaimers" address performance of the product. The preferred "Indemnity clause" holds both parties harmless "to the extent permitted by law".

In case of a "breach of agreement", it is a good idea for publishers to allow the institution thirty days to fix the problem. This may not be possible on the international scene where there are more cases of abuse. Since most state institutions will not agree to jurisdiction of another state, it is best to indicate the library’s state or omit the clause altogether.

BUSINESS TERMS AND CONDITIONS

Libraries can control access and educate their users but not control "all use". The terms must be stated in a way that the library can actually enforce the agreement. For example, libraries can only act on violations of the contract "of which they become aware".

Publishers need to be aware of the libraries’ commitment to patron confidentiality. If the license requires copyright statements on printouts, language should be provided as part of the header/footers for each page. A reasonable time should be allowed for payment of invoices and any interest or late fees need to be stipulated in the contract. Actual content should be clearly stated as well indicating which volumes/issues are included and for what time frame.

Termination clauses that are reciprocal are preferred. To avoid unexpected cancellations, require a renewal notification no more than sixty days in advance.

CONCLUSION

The goal of this workshop was to streamline the process for everyone by developing licenses that meet the needs of both parties from the start. Negotiating licenses consumes a tremendous amount of time for both the library and the publisher. Workshops such as this one remove some of the mystery around licensing and increase the efficiency of the process.

Inquiries about possible dates for future ARL workshops can be addressed to Mary Case (marycase@arl.org or (202) 296-3296).