1. “WE’RE DOOMED” OR “DON’T
PANIC”? E BOOK LICENCE ISSUES
Professor Charles Oppenheim
c.oppenheim@btinternet.com
11th Annual E-Books Conference, 27/10/11

2. WHO ARE THE PLAYERS?
• Author
• Publisher - maybe also in other media; can be commercial, learned
society, Government agencies, not for profit
bodies, Universities, etc.
• Aggregator – not always in the chain as e-book publisher might sell
directly; normally a commercial organisation
• Intermediary, such as Amazon, selling via Kindle or through
someone else’s hardware
• Librarian – not always in the chain as the sale may be to the user
directly
• Reader/user
• Each player typically has a licence or some other contractual link
with the next in the chain, but not with anyone more distant in the
chain

3. THE CONTRACT (LICENCE)
• Negotiated between parties of different
strengths - normally the supplier is in the
stronger position, but not always
• In most cases it is “take it or leave it” - no
room for negotiation - but this is not so
common in the case of large users
• N.B. Unfair Contract Terms Act does NOT
apply when the licensee is an organisation

4. WHAT IS A LICENCE?
• Not a sale (assignment)
• Compare to house sale/rent
• Licence is equivalent to renting
• Why isn’t it an assignment/sale?
• If you sign a licence, you don’t
necessarily get the e-book in perpetuity

5. THE PROBLEM WITH LICENCES
• Series of contracts with a series of
suppliers, each with different terms and
conditions
• This in turn requires you to inform your users
• Some may impose unacceptable terms and
conditions on your users
• IN THE END, IT’S UP TO YOU WHETHER YOU
ACCEPT THE LICENCE OR NOT, AND WHAT YOU
TELL YOUR USERS

6. MODEL LICENCES
• http://www.licensingmodels.org/E-bookLicense.html
• http://www.jisc-collections.ac.uk/nesli2/NESLi2-
Model-Licence-/ - there is an e-book model licence
but it doesn’t seem to be online yet; no doubt it will
be similar to the e journals model licence shown at
the above URL.
• Have a good look at both of them, decide which
clauses look good in them, and try to get them
incorporated into any e-book licence you deal with!

7. CLAUSES YOU MIGHT ENCOUNTER
• Parties – who is signing
• Definitions – of information being supplied, jargon
terms
• Obligations on licensor – few, if any, , e.g., to inform
of changes to content or prices; user manuals, help
desk, training.
• Term, and renewal
• Fees payable, VAT

8. CONDITIONS OF USE
• What can, and cannot be done with the
information, e.g., redissemination, saving
copies, systematic copying, % that can be copied, merger
with other data, re-selling of content (either in part, or the
entire e-book), lending, downloading onto mobile
devices, length of time downloads can be retained
for, extent of printing, adaption of content, limitations
to, e.g., private research or private study…..e-book licences
vary wildly on these points – make sure you are happy with
what the licence says!
• Copyright notices, if any, that must appear
• Distribution to Intranets/portals
• Numbers of simultaneous users/machines

9. AUTHORISED USERS
• Full time staff? Part-time staff? Certain types
of staff? Visitors? Walk-in users? Anyone and
everyone?

10. WARRANTY AND INDEMNITY
• Warrants that information is owned by licensor, or
licensor is empowered to enter into licence
• Warrants that information does not infringe
copyright or other similar rights anywhere in the
world (sometimes limited to one country though)
• Warrants that information does not break law, e.g., is
not defamatory, pornographic, does not breach anti-
terrorism laws, data protection laws, etc. (Normally
NOT on offer, but should ideally be present)
• Indemnity for licensee should any of the warranties
turn out not to apply

11. OBLIGATIONS ON LICENSEE
• To keep passwords confidential
• To deal with any breaches of contract by authorised
users
• But attempts to REQUIRE licensee to police users
should be resisted; “use best endeavours” to do this
better from user point of view, worse from producer
point of view
• Attempts to make licensee liable for misdeeds of
users also should be resisted if possible
• To destroy all copies of content, software, etc., at
termination

12. LIABILITY
• What if the information is erroneous?
• Can cause physical injury
• Can cause financial damage
• Many Court cases around the world have shown
that information providers cannot get out of
obligations with catch-all waiver clauses, but do
expect searchers to use diligence and common
sense, especially if they are professionals

13. KEY WORDS TO LOOK OUT FOR
• “to the extent permitted by law, we waive
liability…”
• Too often e-book publishers make no
representations of, and accept no liability
for, accuracy, correctness, lack of omissions or
reliability. Such clauses are invalid in UK law;
better to try and persuade the licensor to use
the words above.

14. PROTECTING STATUTORY RIGHTS
This agreement is without prejudice to any
acts which the licensee is permitted to carry
out by the terms of the Copyright Designs and
Patents Act 1988, and nothing in this
agreement shall be construed as affecting or
diminishing such permitted acts or exceptions
to copyright in any way whatsoever.
This wording or similar should be present – if
not, press for its inclusion!

15. FINAL BITS
• Applicable law – very important; best if it is your home
country, but this may not be possible if dealing with a major
vendor. Often left ambiguous or ignored – very unhelpful
• Dispute resolution – arbitration – rarely mentioned but can be
useful
• Complete agreement – nothing else constitutes any part of it
• May not assign rights and obligations except with agreement of
other party – rarely mentioned but can be useful
• Confidentiality – keep this contract secret, privacy of client
• force majeure (circumstances beyond reasonable control)

16. QUESTIONS/DISCUSSION