Licensing

An overview of the licensing process

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Overview of the Licensing Process

• New players in new roles– Previously bought materials through intermediaries, now deal

directly with publisher/vendor

• What is a license– A license describes rights granted by a person/publisher who

owns or has control over a particular property.– A license is a grant of rights.

• Copyright– based on contract law– Can copyright works, not ideas, concepts or factual information– fair use

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Developing an understanding of the major terms

• Thoroughly read the entire agreement

• Looking at institutional definitions

• Identifying key rights

• Identifying key obligations

• Reviewing business terms and contractual obligations

• Adding contractual commitments

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Definition of Licensor

• This agreement (“Agreement”) by and between The Publishers International Linking Association, Inc., a nonprofit membership corporation organized under the laws of New York doing business as CrossRef (“CrossRef”), and George Mason University Libraries_ (“Library”),

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Definition of Licensed Materials

• The materials that are the subject of this Agreement shall consist of the 'Journals' as specified in Appendix A attached to this agreement (hereinafter referred to as the "Licensed Materials").– Be as specific as possible, especially when

licensing journals.

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Term of License

• Term should always be specified, i.e. from 1/1/2004 to 12/31/2004.

• If automatic renewal, add language giving the licensee a way out, i.e. Sample text: If the Licensee does not pay the renewal fees by the end of the Term, the Licensor will assume that the Licensee does not wish to renew the Agreement and the Agreement will terminate.

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Authorized Users

• Include the widest definition possible, faculty, students, staff, adjuncts, walk-in users, temporary faculty/staff/researchers, registered patrons, etc.

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Text for Authorized Users

• Sample text:“Authorized Users” are the employees, faculty, staff, and students officially affiliated with the Subscribing Institution or patrons of the Subscribing Institution’s library facilities. This includes occasional users who access the George Mason University Libraries website through stations physically located on the site and under the control and administration of the Subscribing Institution. Authorized Users also includes persons affiliated with remote sites or campuses of the Subscribing Institution that are administered from the Subscribing Institution’s site or campus, but not persons affiliated with remote teaching campuses that have separate administrative staffs

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Access

• Local– Include entire campus/institution, not just one

building

• Remote sites– Distance ed sites, if applicable

• Dial-in

• CD-ROM: stand-alone or networked

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Licensor’s Obligations

• The publisher must use reasonable efforts to maintain adequate Internet connection bandwidth and server capacity, and Publisher must state that he has copyright to licensed materials

• Sample text: The Publisher warrants to the Licensee that the Licensed Materials used as contemplated by this License do not infringe the copyright or any other proprietary or intellectual property rights of any person

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Losing Copyright

• The Publisher may lose the right to publish material and want to withdraw this: Sample text: The Publisher reserves the right at any time to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. The Publisher shall give written notice to the Licensee of such withdrawal

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Ensuring Access

• Publisher must ensure access at all times:Sample text: Publisher will use reasonable endeavors to make the Licensed Materials available to the Licensee and to Authorized Users at all times and on a twenty-four hour basis, save for routine maintenance (which shall be notified to the Licensee in advance wherever possible), and to restore access to the Licensed Materials as soon as possible in the event of an interruption or suspension of the service.

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Licensee’s Obligations

• Licensee will allow authorized users to have access to the Licensed Materials only from the Server via the Secure Network and will post copyright notices.Sample text: Licensee will use reasonable endeavors to notify Authorized Users of the terms and conditions of this License and take steps to protect the Licensed Materials from unauthorized use or other breach of this License. Licensee will use reasonable endeavors to monitor compliance and immediately upon becoming aware of any unauthorized use or other breach, inform the Publisher and take all reasonable and appropriate steps, including disciplinary action, both to ensure that such activity ceases and to prevent any recurrence

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Permitted Uses

• Permitted uses are often listed• Maybe followed by a statement that all uses not

expressly permitted are not allowed. • Read carefully and make sure all uses important

to you are included.• The most common uses are: Searching and

displaying, viewing, browsing, and printing or downloading. Use is often limited to personal use, research/educational use, no commercial use, limited copying, i.e. no full journal issues or systematic downloading of a database.

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Specific Uses

• Copying– May you make temporary electronic copies of

all or part of the licenses materials as needed?

– Copying rights for archival use– Are copying rights reasonable?

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InterLibrary Loan

• Print copies for ILL, delivered via fax or Arial

• Is electronic ILL allowed?

• Must ILL office track lending activities?

• Has the ILL office been notified of these requirements?

• Are they able to comply?

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InterLibrary Loan

• Sample text: The electronic form of the Licensed Materials may be used as a source for Interlibrary Loan whereby articles can be printed and these print copies be delivered via postal mail, fax or fax-based service (e.g. Ariel or Prospero) to fulfill ILL requests from an academic, research or other non-commercial library. Requests received from for profit companies or directly from individuals may not be honored. Electronic transmission of files is not permitted

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Coursepacks/E-Reserves

• Coursepacks/Electronic Reserves

• Is the library involved in collecting materials for coursepacks or e-Reserves?

• Does the E-reserve system limit access through password or IP protection?

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Use Statistics

• As electronic products are quite expensive, we want to make sure we get our money’s worth.

• We want monthly use statistics showing use by the month, week or day

• Location, kind of searches, number of searches• Database used in cases where multiple databases

published by same publisher• Results of queries/searches• Sample text: Licensor will provide aggregate usage

statistics to the Licensee about the use of the Licensed Electronic Products by the Licensee’s Authorized Users

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Archiving

• Include archival rights especially in cases where cancel print

• Are we acquiring a product that is ours to keep• Are we just acquiring access? In perpetuity?• Do we own any right to the content?• Do we have fair use rights in perpetuity?• On termination of this License, the Publisher shall

provide continuing access for Authorized Users to that part of the Licensed Materials which was published and paid for within the Subscription Period, either from the Server or by supplying electronic files to the Licensee [subject to payment of such fees as the parties may agree]

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Payment Issues

• Net 30 days – try to lengthen term• Avoid late payment penalties• If the contract provides for payments

beyond the current fiscal year, add a statement that payments beyond the current fiscal year are conditioned on appropriation of sufficient funds to cover the purposes set forth in the agreement.

• Taxes

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Legal Issues

• Indemnification.– Hold harmless– Reasonable attorneys’ feesSample text to be stricken

The Licensee agrees to indemnify, defend and hold the Publisher harmless from and against any loss, damage, costs, liability and expenses (including reasonable legal and professional fees) arising out of any claim or legal action taken against the Publisher related to or in any way connected with any use of the Licensed Materials by the Licensee or Authorized Users or any failure by the Licensee to perform its obligations in relation to this License …

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Venue

• Venue. Don’t agree to being sued in another state.

• If you cannot change the venue, at least be silent on this issue.

Sample text: This contract shall be construed, governed and

interpreted pursuant to the laws of the Commonwealth of Virginia. All disputes arising under this contract shall be brought before a proper state court in the Commonwealth of Virginia.

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UCITA

• Uniform Computer Information Transactions Act– Try to opt out

Sample text:

Notwithstanding anything herein to the contrary, the parties mutually agree that the Virginia Uniform Computer Information Transactions Act, Virginia Code [section] 59.1-501.1 et seq., does not govern this license.

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Confidentiality

• Try to strike– If cannot strike, add clause to make it subject to the

VA Public Records Act

Sample text:

Except as required by law, neither party shall disclose the terms and conditions or the subject matter of this License (including, without limitation, any monetary information on the Schedules or the list of the Licensed Materials) or any other information about the other party's business to any third party without the prior written consent of the other

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Try to Include

• Add a statement that the license constitutes the entire agreement– This License constitutes the entire agreement of the

parties and supersedes all prior communications, understandings and agreements relating to the subject matter of this License, whether oral or written.

• All changes must be in writing – Alterations to this License are only valid if they are

recorded in writing and signed by both parties• Sovereign Immunity.

– Nothing herein shall be deemed a waiver of the sovereign immunity of the Commonwealth of Virginia

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Other change

• Best Efforts– Ensure, best efforts, guarantee: change to

reasonable efforts

• No Responsibility for User Behavior– Will make reasonable efforts to ensure

compliance …– Shall make reasonable steps to inform

authorized users …

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Questions???

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