Abstract
Electronic resource contract law language presents many problems for both librarians and publishers. For librarians, problems generally involve interlibrary loan permissions and perpetual access/archival rights. For publishers, problems involve breach of contract and definitions of authorized users and sites. Through a description of the basic license elements and practice with a sample license, problems diminished in this session.
INTRODUCTION
Selden Lamoureux and Clint Chamberlain, both serving as electronic resource librarians at their academic libraries, led this constructive electronic resource licensing preconference. Together they have a combined eighteen years of licensing experience so are well-suited to conduct this important session. During the session they discussed introductory license components and common language. Term definitions, goals, disclaimers, mission statements, basic license elements, negotiation, emerging standards, and alternatives to licensing were discussed. A hands-on activity to locate contract law clauses within a license brought ownership to the learning. It provided small group discussions and personal interaction. A comprehensive discussion of license clauses, their meanings, latitude for negotiation, and language to avoid occupied the second half of the preconference. Prior to the session, registrants were given two reading assignments. Additional reference materials were provided at the session itself. Many of these materials are listed in the “Additional Resources” section and all are also available in the preconference wiki included therein.
PRECONFERENCE GOALS
Lamoureux and Chamberlain provided these goals for the preconference in order to inform participants about what they could expect:
| • | Obtain a secure connection: Everyone will have the opportunity to converse with at least one other person who also has experienced the dynamics of the licensing process and the complex components involved in contract law. | ||||
| • | Confidence building: Participants at the beginner level with contract law will increase skills and gain confidence. The law gets more familiar the more you read. | ||||
| • | Broaden context: Audience members with advanced ability in contract law will gain a deeper understanding of its intricacies. | ||||
| • | Libraries' eyes, publishers' eyes: Library-centric and publisher-centric viewpoints will be discussed, explained, and made clearer. | ||||
| • | License standards: Participants will learn about Shared Electronic Resource Understanding (SERU) and National Information Standards Organization (NISO) movements to develop standards so that the contracts become easier to read, negotiation is smoother, and language is machine-readable. ONIX-PL (ONline Information eXchange for Publications Licenses) can dominate the electronic resource era. | ||||
| • | Real thing: Practice an in-class assignment called “Find that clause” in small groups, searching a sample license for basic license element clauses. | ||||
| • | Archive: Reference materials were provided to participants, including a list of attendees and their contact information. | ||||
| • | Perpetual access: In order to sustain license learning and remain connected, a wiki has been established as a living handout. Discussions about licensing, standards, or related issues can begin here and be stored here. | ||||
The presenters also made note of a few important disclaimers regarding the session and copyright law. First, the session was meant to be library-centric, although they welcomed representation from publishers. Also important to note is that contract law is not copyright law. Finally, university legal counsel decisions trump all else.
THROUGH LIBRARIES' EYES
The presenters reminded participants that institutional policies and missions are important in order to know what you want to see in a license. “Licenses are written by lawyers as narratives. They are human documents, not intended to be multiple choice,” Lamoureux said. During the print era, it was harder for abuse to take place. Librarians knew how to comply with copyright law even though fair use can be very difficult to interpret at times. The electronic resource era changed the emphasis to contract law.
Lamoureux emphatically stated, “User needs are the most important condition.” As you decide what you want, ask yourself these questions: What is important to your users? What uses do they have for the material? Who is allowed access? What conditions must you abide by, that is, those which are dictated by your local, state, or federal laws? What is your library's core mission? What is the next higher governing body's core mission? The library's mission statement will be the driving force behind the greater part of the decision-making processes in licensing.
During the discussion, the audience made several comments about remote access. One librarian noted that “all researchers require remote access.” Another asked, “How many of your library patrons never come into the local building?” Audience members offered their thoughts and many interesting situations regarding access were noted. For example, some libraries have visiting scholars who are given electronic access. Public libraries serve walk-in users who can obtain temporary electronic access. Statewide licenses include ways for every state resident to become an authorized user. Research libraries serve as libraries of record and are responsible for satisfying public researcher needs.
Chamberlain related that it is important to note how you register your users. Will this be accomplished with WebFeat IP addresses, IP addresses for remote access (proxy IP), federated searches, or EZproxy? EZproxy may look to the publisher like a thousand articles were downloaded by one person when in fact they were downloaded by a thousand individual users. “Registered users” is the best term to use as it is the easiest way for libraries to be in compliance. Content host software cannot be seen by publishers. There is less control over users by the publisher under this condition and so illegal downloads can be a complicated matter. If breach should occur, the site will be shut down immediately. Remedy of that breach should be spelled out. When breach occurs, how long would the library expect that the site will be shut down? It is important for the library to know this information. Thirty days would seem like a reasonable amount of time.
Chamberlain stated that licenses manifest from publishers so we as librarians presume that “it is a publisher's document, but the library has users and institutional policies to follow.” The library must read the document and analyze how it applies to the library's mission and the institutional mission. A recognized emerging trend is that most publishers, even small ones, are requiring a signed contract. The simplest form of this is a click-through license, which requires the librarian to agree to abide by certain conditions online by typing in the word “yes” before the access token will be accepted and online access is provided.
Lamoureux asked for a show of hands to the question, “Is there a library that is required to have a license?” One, maybe two hands were shown. She noted that “a license is not exclusively to protect the publisher's rights.” A contract license is intended to protect the library and the good will that librarians provide by serving as caretakers of information.
Chamberlain reminded the audience that “licenses are mutual documents … and do not be shy about adjusting the document to your specifications and needs.” The library can have its viewpoint represented and there is “nothing wrong about that,” Chamberlain reassured the audience. Lamoureux said, “In a contract, part of the language will have to do with ‘primacy’ of the license.” It is the language that takes precedence above all other clauses. A clause that states changes can be made is fine, but those changes must be agreeable to both parties. She explained, “What good would it do to sign an agreement where only one party can make changes? This is like a blank check clause, a boilerplate clause. No publisher would ever sign it themselves.”
Chamberlain related that making modifications before signing occurs is done as part of a mutual agreement time—a meeting of the minds. Be sure to get clarity of warranties as you need to completely comprehend what one party says they can deliver. Warranties say that the first party believes this is what the second party is guaranteeing. Chamberlain suggests asking yourself, “Is it true what they say they can deliver?”
Indemnification describes how the subscriber is held harmless and is not held responsible for third parties. Chamberlain said, “Don't open the door for your library to be sued.” Think of how many end users you have! It only takes one unscrupulous end user to do damage; you cannot expect to be responsible for third-party end users, period.
Chamberlain said that at a state institution, governing law is important to the parties. Sometimes “we remain silent” which means to take out the language altogether. Sometimes that is acceptable to the publisher. Copyright law is national law. Contract law is different in each of the fifty states. The statements about governing law and jurisdiction must not list any location other than that of the library.
Mitigation, the presenters explained, is if something does go to court. The lawyers first want to know where this conversation would take place. If you work at a state institution, the jurisdiction and governing law must have your state's name in it. Any arbitration must happen within the state where the library resides. State policy at universities has jurisdiction clauses and state policy restrictions that must be enforced. Lamoureux clarified that sovereign policy says, “nothing in this agreement limits in any way the attorney general to pursue his legal obligations. It means you can sue us, but for just one year of subscription cost.”
Boilerplate is standard language or a standard clause that can be used from another agreement. Have some template licenses that you can send to a publisher, clearly written so that they can understand and interpret it. An audience member stated that the federal government knows that it supersedes all state laws. Lawyers are aware of this clause, which says something to the effect of, “laws of … insofar as they do not conflict with federal law.” A member of the audience noted another example of boilerplate language found in Virginia state law, saying that, “‘If nothing herein shall be deemed a waiver of the Commonwealth of Virginia,’ which means you can sue us but we have a lot of immunity.” Chamberlain uses a Web document that is an explanation of provisions in an addendum that the state of Texas requires all state agencies to use for a contract valued at $10,000 or more. Having prepared boilerplate language will avoid prolonging the process rather than having to send questions to organizational lawyers prior to negotiating a license.
Force majeure is more boilerplate language, the presenters explained. In the event of some catastrophe, such as a strike or natural disaster, the publisher is not going to be held responsible. Be sure to make this clause mutual with the publisher.
Your institution should define parameters of allowed language in a license, suggested Lamoureux and Chamberlain. The word “direct” is often stricken from the phrase “direct damages” found throughout the license. Libraries cannot be responsible for those. Breaches have to say, “material breaches.” Regular breaches may mean that you are two weeks late in making a payment. Put the word “reasonable” in front of every place you find the word “effort.” Contract law has strict meanings for “good faith effort,” “commercial effort,” “reasonable effort” (what everyone else is doing, what is being performed to meet the standard), and “best effort” (best effort is extreme and cannot be met). In front of every “user,” insert the word “registered.” Sometimes the provisions of state law are not clear for publishers, Chamberlain says. The reference documents on his library's website explain reasons to have certain clauses. These prepared statements will help, if written clearly, to avoid the need for sending a license to the library's legal counsel for interpretation, which greatly extends the negotiating process.
THROUGH PUBLISHERS' EYES
A participant who works for a publisher noted that their mission statement includes the importance of document language and delineating what is appropriate use. The language may say “aimed at the end user” or “scholarly use.”
Another publisher representative said the publisher's main purpose in issuing a license is to minimize user abuse of copyright. In the past, complete journal issues and databases were illegally downloaded. It is not really possible to copy a database or even host it on servers now. Publishers want to be fair. They allow you to make one copy, print it, and send an electronic copy to a friend. The competitive business model is to offer more elaboration of permitted uses. A publisher highlights their willingness to compete by offering add-on features like being COUNTER (Counting Online Usage of NeTworked Electronic Resources) compliant and offering SUSHI (Standardized Usage Statistics Harvesting Initiative) services.
The presenters noted that libraries are interested in perpetual access. What do publishers do to guarantee perpetual access? Is it archival copies on CD-ROMs, institutional server space, or publisher server space for the small library (with a maintenance fee)? Is it through supporting repositories like LOCKSS (Lots of Copies Keep Stuff Safe), CLOCKSS (Controlled LOCKSS), or Portico? A license is used by a publisher to promote the competitive advantages they have to offer libraries. Libraries need to know what is important for them. Does your institution have server space? Who would be responsible for CD-ROM maintenance and upgrades?
Breach is a serious situation for publishers in regards to copyright protection, Lamoureux explained. A publisher representative said, “breach of contract is something publishers look at closely.” If suspicious behavior is detected, for instance a phenomenal number of downloads are recorded, the site is shut down immediately. If a publication is “managed by a content host, it is an even harder breach to solve because they have software that the publisher cannot even see.” It is not reasonable to wait for an institution to find the student or user who performed the illegal download. The breach needs to be stopped immediately. There are different terms publishers use for different needs. You will see terms such as terminate access, immediate suspension of access, and notification of repairs (bring down IP address for maintenance).
Publishers hardly ever sue a library, according to the presenters. Lamoureux declared that this fact tells us that libraries and publishers have a respectful, professional relationship. Scholars' content comes from publishers and that content is distributed from libraries to a sea of users. Lamoureux noted that library-publisher relations are “characterized by cordiality and understanding of mutual support.” Publishers are equally grateful for the professional way librarians conduct business. We must remember that publisher representatives are not usually attorneys and they may need time to gather explanations from their legal counsel.
Publishers need a clear definition of authorized users and clarity of authorized sites, a publisher representative stated. Business terms are described in the license. Publishers will ask these questions: How many remote sites do you have? When is payment due? When will it be late? Does the actual contract cycle match the payment? When is notification of cancellations needed?
Publishers require that notification about copyright material be given to end users. Notification to the end user about legal use of the licensed material must be displayed prominently on your website, said the presenters. Lamoureux said that it can simply state, “these e-resources are protected by copyright law and commercial use is not allowed.”
BASIC LICENSE ELEMENTS
All libraries should have a mission statement; it is a collective decision about the library's purpose. Lamoureux explained that if a library does not have a mission statement, the basic elements of a license can guide the negotiation and languages. Basic elements to be covered in a license are listed below (traditional library mission statement elements that can be undermined by contract language are marked with an asterisk):
| • | Remote access | ||||
| • | Site definition* | ||||
| • | Authorized user definition (be sure to include visiting scholars at academic libraries or walk-ins at public libraries) | ||||
| • | Scholarly share (send a copy of this article to___@ e-mail address) | ||||
| • | ILL (interlibrary loan) limitations within Fair Use Doctrine Section 107, Copyright Law* | ||||
| • | Coursepacks | ||||
| • | Course reserves | ||||
| • | Perpetual access (lease vs. own)* | ||||
| • | Payment terms | ||||
| • | Subscription period | ||||
| • | Business terms | ||||
| • | Warranties | ||||
| • | Indemnifications | ||||
| • | Countersignatures* | ||||
| • | Usage statistics* | ||||
| • | Anything that holds the end user responsible | ||||
| • | Breach/Remedy (suspension vs. termination) | ||||
| • | Blank check clause | ||||
| • | Governing body of law & jurisdiction | ||||
| • | Required language (asking for a lot of immunity; could include “sovereign state” language or state policy restrictions) | ||||
| • | Reasonable efforts to display copyright law by libraries and efforts to provide service by publishers | ||||
| • | Force majeure | ||||
| • | Material breach (the breach above all other breaches) | ||||
EXERCISE #1: WHICH ELEMENTS TO INCLUDE
Exercise #1 was explained as a collective activity for small groups to discuss where within a sample license they could find the numbered clauses from a worksheet. Elements to look for included several of those listed above as basic license elements. Following the exercise, participants were asked to analyze what they learned. The audience noted that clauses could be found in more than one place. A term could be mentioned in one paragraph and be detailed in another. Standardized language for electronic resources is essential as this format is growing exponentially. One of the most difficult things is how you identify where these clauses are, and how you map them into your workflow documents. You will need to map this into an electronic resource management (ERM) system. Standard language that is clear and easy to use will help to make mapping these data into an ERM system easier and more efficient. The standard being developed is ONIX-PL. Receiving an electronic copy of a license aids in search and identification of terms. It helps standardize the means of expression and communication of usage terms. Sometimes elements are described in several places in a license, each using somewhat different terms. This makes reading and analyzing the license more difficult.
Chamberlain asked, “Where do you find indemnification of intellectual property?” Libraries were once the curators of content when they owned the print. Do not allow your document to keep language that holds the publisher harmless from and against any and all liabilities resulting from any unauthorized use by third parties. Another ambiguous statement might read something like, “the licensor has the option to renew for successive license periods with current terms that are updated each year without presentation to you.” Libraries must know if any terms have changed and exactly what the changes entail. When in doubt, get clarity. Ask what is meant by the word “TERMS” in all capital letters. Does it refer to the entire document or does it refer to money? Sample license models and unacceptable licensing terms were shared with participants.
Some licenses can have language that is not clear, the audience reported. Is “continuing access” the same as archival access? Perpetual access means when the subscription stops, you still have the right to view the access for which you paid, Lamoureux said. Perpetual access is a critical issue at a major research university as well as for ILL and coursepack restrictions. Perpetual access and ILL rules are the most important if you are purchasing online-only content. These two are different from copyright law. There is a difference between perpetual access and archival access. Archival access means a permanent copy. Archival access is a function that libraries traditionally provide by collecting print of the scholarly content. When you come across language that is not clear, it is time for consultation and asking for clarification of the language.
If a publisher's software goes offline and they have no backup plan, this is not satisfactory, said Lamoureux. If downtime is not discussed, find a standard clause to insert such as “Quality of Service” in the Standard License Agreement from LibLicense. Include wording that says the publisher must notify you of lapses in service. Lamoureux suggests, “If the interruption continues for x number of contiguous days, then a prorated reimbursement should be forthcoming or an extension of access given.” An internal audit would question how funds are being used if no product or service resulted from moneys spent.
EXERCISE #2: ADJUSTING PROBLEMATIC LANGUAGE
Organized into small groups, participants were challenged to markup or re‐word one of these three clauses in the sample license used at the preconference: authorized user site; interlibrary loan (ILL), coursepacks, e-reserves, or the equivalent; or intellectual property indemnification.
The purpose of this exercise was to practice examining and changing language for your library and challenge the particular contract. Participants were asked to list the problems encountered in the process. It was noted that authorized site language may not fit every institution. When a library has a site in a different city, the authorized site definition in the sample license does not work. “Make some prepared language to fit your library and have it on hand for easy substitution or addition to a license,” Chamberlain said.
Interlibrary loan language in the license was discussed. It was decided that you might want a new section to describe how your library transmits ILL fulfillments electronically. Much is determined by ILL staff and workflow.
A coursepack can be an ambiguous term, the audience decided. Are e-reserves and coursepacks the same thing? Is it just a collection of links to articles? Does the publisher need language to allow inclusion in a course management system, or is there more to it? Usage statistics from coursepacks need to go back to the publisher website so that the numbers can be collected. If you download to a reserve coursepack, then a list of links is easier and the usage statistics can be collected. Faculty may not understand and need to be informed how usage statistics are collected.
The audience consensus was that the intellectual property statement could be amended to include the rights to distribute it and some language regarding exclusions could be removed. Problematic clauses were found with intellectual property indemnification.
Some ILL departments within libraries have problems when the license says they can only fulfill requests in print format. If you cannot modify the license, you have to change your ILL department procedures.
Chamberlain outlined the steps in the negotiation proces. The first step is receiving the offer. This is followed by a period of mutuality where the licensor consents to make changes to the agreement. Next is acceptance of the license and the resulting library payment. The final step is enforcement of the license.
Lamoureux said that somewhere in the license that she signs for her institution it must say that the publisher has the right to own and share this material, and that the library is given the warranty that states those rights. Chamberlain's library must have warranties and indemnifications. Another librarian said that they must have a counter-signed license before a check can be written. A publisher will not make an invoice before getting a countersignature, said a publisher representative. Addendums are allowed at times. Some libraries require the publisher to collect usage statistics, some in such detail that COUNTER statistics are required. Some locations cannot use the word “warrant” or “insure;” some institutions cannot indemnify. You need to know what your institutional guidelines are. A library director has to take responsibility for monetary liabilities. If your job is to comb through licenses before signing, you need to be sure the license protects the library's interests and that it is a mutually agreed-on document.
CONCLUSION
Selden Lamoureux and Clint Chamberlain provided preconference participants with both a better understanding of license elements and challenges while including some beneficial hands-on experience with license interpretation. Electronic resource licensing continues to be a difficult process for both libraries and publishers. However, with the growing number of available resources, standards, and networking opportunities, such as this session, it is clear that the challenges posed through licensing can be met and overcome with greater ease.
ADDITIONAL RESOURCES
Reading Assignments Before the Preconference
Davis, Trisha L. “License Agreements in Lieu of Copyright: Are We Signing Away Our Rights?” Library Acquisitions 21, no. 1 (spring 1997): 19–28. doi:10.1016/S0364-6408(96)00085-3. | |||||
Grogg, Jill E., and Selden Durgom Lamoureux. “Issues in E-resource Licensing.” In Managing the Transition from Print to Electronic Journals and Resources: A Guide for Library and Information Professionals, eds. Maria D. D. Collins and Patrick L. Carr, 273–285. New York: Routledge, 2008. | |||||
Preconference Wiki
“Basic Licensing Wiki (NASIG 2009 Pre-Conference).” http://basiclicensing preconferencenasig2009.pbworks.com (accessed July 3, 2009). | |||||
Selected Additional Information
CLOCKSS. http://www.clockss.org/clockss/Home (accessed July 3, 2009). | |||||
Council on Library and Information Resources, the Digital Library Federation, and Yale University Library. “CLIR/DLF Model License.” Liblicense. http://www.library.yale.edu/~llicense/modlic.shtml (accessed July 3, 2009). | |||||
COUNTER: Counting Online Usage of NeTworked Electronic Resources. http://www.projectcounter.org/about.html (accessed July 3, 2009). | |||||
John Cox Associates. “Licensing Models.” http://www.licensingmodels.org/ (accessed November 10, 2009). | |||||
Law.com Dictionary. New York: ALM Media Properties, 2009. http://dictionary. law.com/ (accessed July 3, 2009). | |||||
Liblicense. http://www.library.yale.edu/~llicense/index.shtml (accessed July 3, 2009). | |||||
“Limitations on Exclusive Rights: Fair Use.” U.S. Code 17, §107. http://www.copyright.gov/title17/92chap1.html#107 (accessed July 3, 2009). | |||||
“Limitations on Exclusive Rights: Reproduction by Libraries and Archives.” U.S. Code 17, §108. http://www.copyright.gov/title17/92chap1.html#108 (accessed July 3, 2009). | |||||
LOCKSS. http://www.lockss.org/lockss/Home (accessed July 3, 2009). | |||||
National Commission on New Technological Uses of Copyright Works. “CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements.” Coalition for Networked Information. http://www.cni.org/docs/infopols/CONTU.html (accessed July 3, 2009). | |||||
National Information Standards Organization. “Standardized Usage Statistics Harvesting Initiative (SUSHI).” http://www.niso.org/workrooms/sushi (accessed July 3, 2009). | |||||
NISO SERU Working Group. SERU: A Shared Electronic Resource Understanding. Baltimore, MD: National Information Standards Organization, 2008. http://www.niso.org/publications/rp/RP-7-2008.pdf (accessed July 3, 2009). | |||||
Oakley, Robert, et al. Principles for Licensing Electronic Resources. Washington, DC: Association of Research Libraries, 1997. http://www.arl.org/sc/marketplace/license/licprinciples.shtml (accessed July 3, 2009). | |||||
ONIX-PL Working Group. http://www.niso.org/workrooms/onixpl (accessed July 3, 2009). | |||||
Yale University Library and the Council on Library and Information Resources. “Definitions of Words and Phrases Commonly Found in Licensing Agreements.” Liblicense. http://www.library.yale.edu/~llicense/definiti.shtml (accessed July 3, 2009). | |||||
Web Content Accessibility Guidelines Working Group (WCAG WG). http://www.w3.org/WAI/GL/#Publications (accessed July 3, 2009). | |||||