1. N A S I G 2 8 T H A N N U A L C O N F E R E N C E
J U N E 9 , 2 0 1 3
FUNDAMENTALS OF
E-RESOURCE LICENSING

2. OVERVIEW
• Why licensing is important
• Review laws that effect use of content
• Getting started working with license agreements
• Anatomy of a license agreement
• Focus on authorized use clauses
• Draw upon Florida Virtual Campus Guidelines for E-Resource
License Agreements
• Emerging licensing issues
• Negotiation tips

3. WHY IS LICENSING IMPORTANT?
• Rights to use content in the print environment
largely governed by US Copyright Law
• Rights to use content in the online environment
largely governed by Contract Law though the use
of license agreements
• In print environment, libraries generally purchase
materials, with rights implicit to that purchase
• In electronic environment, libraries typically
license, or lease access to content

4. COPYRIGHT LAW
• Copyright Law grants a copyright owner distribution
and reproduction rights, with important exceptions:
• First-sale doctrine: has to do with distribution rights
• Allows libraries to lend, sell, discard print materials
• Fair-use: has to do with reproduction rights
• Provides for use in criticism, comment, news
reporting, teaching, scholarship, and research.
• Four factors of consideration: purpose, nature of copyrighted
work, amount of content used, effect upon market
• Educational & library exceptions
Interlibrary loan, use in course packs

5. CONTRACT LAW
• License Agreements for e-resources are
contracts, and thus governed by contract law
• Contract terms take precedence over existing rights
and exceptions granted under Copyright Law
• License Agreements can reduce existing rights of
content use
• Careful construction of license agreements is
essential to retain resource sharing and other rights

6. GETTING STARTED IN LICENSING
• Don’t be afraid/intimidated/hesitant
• Develop local licensing guidelines (or steal liberally
from others!)
• Ask for a copy of the agreement early in the
acquisitions process; request an editable format if
necessary
• Use the “Track Changes” feature of your word
processing program to edit clauses, adding
comments as necessary
• Assume your changes to the agreement will be
accepted by the vendor

8. DEVELOP A NETWORK OF SUPPORT
• Educate your colleagues
• Purchasing Office
• Experience dealing with contract and negotiating
• Office of General Counsel
• Provide expertise on legal issues such as
indemnification, warranties, intellectual property issues
• LIBLICENSE Listserv
• Forum for discussing licensing issues, Q & A

9. LEVELS OF COMPLEXITY
• Licenses for aggregator databases, online
reference resources, collection development
tools, etc., tend to be brief and relatively
straightforward
• E-journal package licenses, e-book licenses, tend to
be lengthier and more complex
• interlibrary loan
• course packs
• archival and perpetual rights

10. ANATOMY OF A LICENSE AGREEMENT
• Description of “Licensor” and “Licensee”
• Glossary of Terms
• Authorized Users/Site
• Authorized Uses
• Licensor Responsibilities
• Licensee Responsibilities
• Mutual Obligations
• Legal Issues (Governing Law, Indemnification, etc.)
• Schedules and Amendments

11. AUTHORIZED USERS
• Defined by affiliation with university, not geographic
location
• Be as inclusive as possible (include contractors and
affiliated users)
• Include provision for “walk-in” or “occasional” users
Sample clause:
“Authorized users include those persons affiliated with
Licensee as students, faculty, staff, and independent
contractors of Licensee and its participating
institutions, regardless of the physical location of such
persons, as well as walk-in users.”

12. AUTHORIZED SITE
• Should be defined at the institutional rather than library
level; not geographically based
• Allow access by all users who have the right to access
the institutional network
Sample clause:
“The authorized site consists of all geographic locations
and/or campuses of the institutions that are identified in
the agreement as Participating Institutions. All authorized
users who have right of entry to the network are granted
access regardless of their physical location. This definition
may include institutions with joint-use facilities that reside
on a single network.”

13. AUTHORIZED USES
• Retention of all rights in accordance with U.S.
Copyright Law
Sample clause:
“The Publisher agrees to grant to the Consortium the non-exclusive and
non-transferrable right to give Authorized Users access to the Licensed
Materials via a Secure Network for the purposes of
research, teaching, and private study and other uses in accordance
with U.S. Copyright Law, including fair use and library reproduction
rights.”
OR
“Nothing in this License shall in any way exclude, modify, or affect any of
the Consortium’s or any Member’s statutory rights under national
copyright law.”

14. INTERLIBRARY LOAN
• Electronic ILL should be allowed
• Remove references to:
• the provision of data or statistics on ILL use,
• type of library, and references to
• geographic limitations to ILL (e.g., ILL to U.S. only)
Sample clause:
“Licensee may supply through interlibrary loan a copy of
an individual document being part of the Licensed
Materials by post, fax or secure electronic transmission for
the purposes of non-commercial use. Specifically, copies
may be made in compliance with Section 108 of the U.S.
Copyright Act.”

15. INTERLIBRARY LOAN & E-BOOKS
• ILL and e-books remains problematic
• Loaning e-book chapters acceptable
• Tools for loaning e-books under development
Sample clause:
“Participating libraries may supply through Interlibrary
Loan (ILL) chapters of e-book content by post, fax or
secure electronic transmission. Specifically, copies
may be made in compliance with Section 108 of the
U.S. Copyright Act and the limitation of the [Vendor]
system.”

16. USE IN COURSES, CMS
• May be covered in a single clause or multiple
clauses
Sample clause:
“Licensee and Authorized Users may use a
reasonable portion of the Licensed Materials in the
preparation of course packs, course reserves or other
educational materials as well as within secure course
management systems.”

17. COMMERCIAL USE
• When restrictions to commercial use appear, a
clarifying clause should be present
Sample clause:
“For the avoidance of doubt, charging administrative
fees to cover the costs of making permitted copies is
not prohibited. Use by the Consortium or a Member
or by an Authorized User of the Licensed Materials in
the course of research funded by a commercial
organization, is not Commercial Use.”

18. PERPETUAL ACCESS
• Perpetual rights vary by type of resource
• Aggregator databases and other databases generally
don’t provide
• E-journal contracts generally include perpetual access
rights
• Perpetual access fees should be in the Fee Schedule
Sample clause:
“Perpetual access to the full text will be provided by the
Publisher either by continuing online access via the Publisher’s
server or by supplying the electronic files to each subscribing
Institution in an electronic medium mutually agreed between
the parties. Continuing archival access and use is subject to
the terms and conditions of the expired License.”

19. LICENSOR RESPONSIBILITIES
• Privacy
• Quality of service
• Provision of usage statistics
• Collection of usage statistics by third party
• Provision for withdrawn materials

20. LICENSEE RESPONSIBILITIES
• Notifying users of license terms
• Avoiding breach
(Language requiring the licensee to do the above
should be edited to make reasonable efforts to)
• Confidentiality – Florida Public Records Law
• Discipline for breach – requirements should be
struck

21. LEGAL ISSUES
• Governing law – should be state of home
institution, or agreement should “remain silent”
• Website user agreements – written agreement
supersedes online agreement
• Indemnification
• Warranties
• Limitations of Liability
(These are complex legal concepts; legal counsel
should be sought for clauses of concern.)

22. SCHEDULES AND ATTACHMENTS
• Useful for laying out terms of the contract that don’t
fit neatly into the main body of the contract
• Commonly include:
• Fee schedules
• Details on participating libraries
• Lists/descriptions of licensed content
• Invoicing instructions
• Contact information
• Are referenced in the main body of the contract

23. OTHER LICENSING ISSUES
• Do I need a license?
• SERU (Shared Electronic Resource Understanding)
• MOOCs
• ADA
• Data Mining
• ILL for E-books

24. NEGOTIATION TIPS
• Make sure all your constituents are on the same page.
• Set your expectations high.
• Know where your points of compromise are and use
them as necessary.
• Refer back to established guidelines and practices.

25. RESOURCES
FLVC Licensing Guidelines, Version II
https://fclaweb.fcla.edu/uploads/FLVC_Licensing_Guidelin
es_Version_III_Final.pdf
LIBLICENSE PROJECT
http://liblicense.crl.edu/
U.S. Copyright Law
http://www.copyright.gov/title17/
SERU
http://www.niso.org/workrooms/seru

26. QUESTIONS?
Contact me:
Claire Dygert
Assistant Director for Licensing and E-Resources
Florida Virtual Campus – Gainesville
cdygert@flvc.org
352-392-9020 x307