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Issues in Science and Technology Librarianship Summer 1999

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Conference Reports

Heads of Sci-Tech Libraries

Pat Kreitz
Stanford Linear Accelerator Center
pkreitz@slac.stanford.edu

Practical Aspects of Licensing Electronic Products

Trisha L. Davis
Ohio State University Libraries and Professor, Kent State Library & Information Studies

ALA/ACRL/STS June 27, 1999
sponsored by:
Heads of Science Libraries Discussion Group
and
General Discussion Section

Ms. Davis' discussion gave an overview of the current and future trends aimed at the librarians who must wrestle with specific licensing agreements in their institutions. Copies of Ms. Davis' overheads may be obtained by sending an email request to her at: Davis.115@osu.edu.

Each institution should have a solid local institutional licensing policy. To do this, one must take the following steps:

  1. Designate a license coordinator
  2. Form a license review team
  3. Determine who holds institutional authority for review and signature
  4. Draft a license review checklist
  5. Identify a single point-person in charge of speaking to vendors, aggregators, or consortia.  This person should produce draft policies, get consensus on them and then communicate policies to all involved.
  6. Use your formal institutional policy to build specific written guidelines for what your institution is willing to accept in the areas of ILL rights and limits, archival access, and copyright.

Before licensing a resource, identify your institution in writing so that you have canned text to put into any license agreement or to hand to vendors trying to determine your size, user community, etc. Ideally, this should be a single sheet which clearly defines your institutional name and location(s); any administrative units; all libraries; and all sites whether on campus or off. This one-pager should be stapled to each contract and readily available to hand to vendors with whom you are negotiating.

When considering a resource to license, be sure to clarify what is being licensed: current and/or retrospective files; perpetual access, content vs. abstracts vs. full text. Don't make assumptions about this. Also, identify in advance the authorized users for particular materials. Create a written description what you'll do internally to ensure only authorized users have access to specific licensed materials. Describe in writing if staff, faculty, students, consultants, or walk-in users at public terminals will be allowed to have access.

Include in the contract language the interlibrary lending rights you want. This might say something like: reserve full rights in digital or print formats in accordance with the ILL provision of Section 108 of the U.S. Copyright Act and the CONTU guidelines. If you sign a license agreement, without specific mention of the Copyright Act provisions, copyright law no longer applies. The license falls under the Uniform Commercial Code Article 2B. You specifically have to be granted copyright rights in the contract you sign. One of the best Web resource sites is the Copyright and Intellectual Property page at ARL: {http://www.arl.org/pp/ppcopyright/}

Partly to have your own house in order, and partly to assure suppliers that you know what you are doing, prepare a document that describes the aspects of access that are critical when considering electronic licensing and delivery. Often these definitions will need to be written with your library or campus IT people's assistance. Areas to define include: Internet access via IP from local area network and campus wide networks; remote access via campus server or the web or from home or office; address also password protection for distance education students. Be sure to make a commitment to some kind of secured access or suppliers will not trust your ability to control licensing. Have some explanation of how your library/campus network handles security and restricts access to authorized users.

If you are licensing a source to be "housed elsewhere," i.e. not on servers and networks under your own control, the contract should define acceptable availability via the Internet to the supplier's centralized resource. Define acceptable levels: server hours; scheduled system maintenance; backup server sites; adequate capacity and bandwidth to support user base and product. Also write in what is acceptable availability of the product contents since many institutions have had the negative experiences. Vendors will reserve the right to make changes to a product. But if you accept this with no protective language, you could find that the journals you particularly wanted as part of the package might be dropped. You'd then be left with a license and payments for a product that no longer contained what you needed. Write into the contract that substantial changes to the method of access or to the content must be reported to the licensee within 30 days prior to the change. Add that the Licensee has a right within 30 days of receiving notice to cancel the contract with a prorated refund if the product changes result in it being no longer useful for the licensee's original needs.

Contracts need to address the issue of archiving. Determine if perpetual access will be supplied in print or digital format from the publisher, vendor, or aggregator. Also determine whether the archive will be remotely accessible, or stored locally in paper or electronic copy. Also spell out local electronic copying rights for archived materials.

If the material being purchased/licensed will be used for reserves, be sure to put language in the contract to cover course packs and electronic reserves. Ensure full rights from digital (downloaded) or print (hard copy) format for sale as course packs and/or for distribution (as electronic reserves) to authorized users in registered courses. You should also include protective language for the supplier assuring them that digital copies will be deleted at the end of the term and that you will not allow non-course related systematic reproduction rights or distribution to anyone other than authorized users. However, strike out any clause that says you'll take responsibility for end users and how they ultimately use information.

Also include specific language on data collection and reporting such as: any data collected by licensors must be reported to licensee on a regular basis. Ensure privacy by including language stating that data collection will respect individual privacy and that the anonymity of individual users and the confidentiality of searches will be protected. You also want to ensure that any data collected will be used for the publisher's private internal use only.

In conclusion, Ms. Davis mentioned that a committee of library, publisher and information vendor representatives was crafting standardized licensee agreements for different library types. She hoped these would soon be available and could be used by libraries to reduce some of the extensive overhead now going to working out individual license agreements with a multitude of vendors. She commented favorably on the license information available from some of the subscription agents such as Blackwell's, EBSCO, Faxon, Harrassowitz, SWETS and Yankee.

Discussion:  Because of the valuable amount of detail included by Ms. Davis, time was short at the end. Discussion included how to handle universities that have distributed campuses and distance learning programs and how to get across to vendors that they have to think of campus-wide access rather than imagine individual access from single, stand-alone computers. Ms. Davis reminded the group that they need to fight for basic access rights in the contract language but that publishers already are giving libraries a reasonable discount so libraries have to be reasonable back. She recommended never fighting warranty language and not to agree ever to indemnities. In response to a question about adjunct faculty and affiliated users, she suggested having them sign a document promising that their use of the product will be for their own personal educational purposes and that they won't use it for commercial or for-profit purposes. She also adjured her listeners that a contract does not have to be confidential and that they never should agree to keep a license's details confidential.

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