licensing of electronic information duncan alford law librarian princeton university

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Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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Page 1: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

Licensing of Electronic Information

Duncan AlfordLaw Librarian

Princeton University

Page 2: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

General Characteristics of License Agreements

Usually prepared by the publisher Provisions favor the publisher License agreements are not uniform “Legalease”

Page 3: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 4: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 5: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 6: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 7: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 8: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

Access

IP address Campus wide building specific multiple offices/ campuses

Passwords End users Librarian/ intermediary

Page 9: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

Use / Prohibited Use

Non-commercial use only in an academic setting

No systematic printing of content No electronic transmission of content

(certain publishers)

Page 10: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 11: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 12: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 13: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 14: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 15: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 16: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 17: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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.

Page 18: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 19: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 20: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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

Page 21: Licensing of Electronic Information Duncan Alford Law Librarian Princeton University

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/