licensing of electronic information duncan alford law librarian princeton university
TRANSCRIPT
Licensing of Electronic Information
Duncan AlfordLaw Librarian
Princeton University
General Characteristics of License Agreements
Usually prepared by the publisher Provisions favor the publisher License agreements are not uniform “Legalease”
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
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
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
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
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
Access
IP address Campus wide building specific multiple offices/ campuses
Passwords End users Librarian/ intermediary
Use / Prohibited Use
Non-commercial use only in an academic setting
No systematic printing of content No electronic transmission of content
(certain publishers)
Definition of Fair Use
First developed at common law in 19th 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
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
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
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
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
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
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
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.
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
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
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
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/