E-Resource licensing and negotiations

Summary of and reactions to "Licensing Electronic Resources and Contract Negotiation" by Ryan O. Weir, chapter four of "Managing Electronic Resources: A LITA Guide" edited by Ryan O. Weir.

Summary

Licensing is the most important duty of librarians involved in e-resources, due to the license being the document that decides the range of uses possible.  The license (i.e. contract law) governs the use of e-resources, before copyright law.  TIP: Assume that signing a license involves signing away all copyright exceptions including fair use, unless included in the license.  There are two types of licenses: End User Agreement (e.g. click-through) and Site/Negotiable License Agreement (typical standard library license).  There can be several parts:

• License Introduction (includes parties and dates)
• Key Definitions (can include "authorized user", the product, or "single site")
• Access (can include methods and locations)
• Acceptable Use (includes what licensees can do with the content such as printing, ILL, transmission, downloading, storage, e-reserve, etc.)
• Prohibited Use & Consequences (can include proxy access, off-campus access, excessive amounts, etc.)
• Licensee Responsibilities (can include impositions on patrons to ensure authorized use)
• Licensor Responsibilities (can include reasonable provision of reliable access)
• Term and Termination (includes the time period and conditions of termination)
• Others such as indemnity, usage statistics, back files, package access, price increase across years, content changes, etc.  TIP: Consider seeking to remove or limit confidentiality clauses.
• Signature Section (typically signed by library director, provost, university president, chairperson of the board, etc.)

TIP:  Should not assume that those activities not mentioned are allowed by the license.  Developing a model license or license checklist is quite simple.  TIP:  License checklist items should be listed as required or negotiable.  TIP:  Remember to negotiate toward a mutually beneficial agreement.  There are advantages and disadvantages to including more or fewer individuals and/or departments in the approval process.  The responsibility for problems lies legally with the signatory, of course, but the professional who purchased the content and reviewed the license will be help accountable in practice.  SERU, or Shared Electronic Resource Understanding, is a NISO developed statement of understanding that can take the place of a formal license.

Reactions

Although the license may seem legally to be the most important part of the acquisition process for e-resources, in reality, given the standard terms, nature of academic use of products, and the relatively flexible nature of the vendor-library relationship, in my experience, it is not typically referred to.  Perhaps it should be, but then again, taking more care in the details of our legal agreements brings with it a certain amount of risk avoidance.  Risk is bad AND good so should be minimized only to a reasonable degree.

It's a shame that librarians and the library world generally has so little expertise in law, contract or copyright or otherwise.  That, along with many areas of knowledge and skill, is sorely needed in library schools or at least in continuing education offerings.  As a undergrad-educated philosopher and near-perfectionist, I like considering the details of legal documents.  It's wordsmithing and logic:  both are fun.

The list of typical sections in a license usually crop up in agreements from large or well-run vendors (or from those that have just photocopied a standard one from somewhere).  Too often the details of a license are not organized or labelled well and can include articles that, in my humble opinion, are almost meaningless legal safety nets.  Standardizing these documents would certainly help our work.

Reading the information and suggestions about developing a model license and/or checklist makes me want to do it.  My library doesn't currently have either and I always like the idea of making checklists and formal-like guidelines for important detailed processes like licensing.  We're lucky in that we are part of two consortia that use model licenses so we will be able to use them almost verbatim.

It is both important to negotiate with the goal of mutual benefit and not so important, in my opinion.  One one hand, we do not want to be in legally binding relationships with partners who feel like they've received the short end of the stick.  That won't do for future negotiations or elements of support throughout the relationship's lifetime.  And often we do want these vendors to remain in business since they are providing us with valuable products and service.  But neither do we want to be aiming for the middle when the other side is aiming entirely for their needs.  Such an imbalance will always end up with us as the losers and that's not fair for our funding sources nor our patrons.  I think the best plan should be to understand the resources, technologies and trends as objectively as possible and then aim just to this side of the middle.  Try to negotiate for what is possible and desired at the macro level now and in to the future and then try to get a good deal for it.  Then we can be sure that we're doing our best for the resources, our patrons and society.