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E-Resource Licensing
Overview and How-To
for the Non-Lawyer
Using this software
• Microphone
• Raising your hand
• Green / Red X
• Laughing / Clapping
• Stepping out
• Text chat
• Audio
• Full Screen
• Exiting
Objectives
At the end of this workshop you will be able to:
• Understand general license terms
• Understand permissions statements
• Suggest revisions/remedies to unfavorable
license language
A little about me
• MLS, Florida State University,
2000
• Instruction and Outreach
Coordinator, Mercer University,
’00-’06
• Professional Development
Librarian, SOLINET/Lyrasis, ’06present
• Not a lawyer!
Seen this before?
What can we do with someone
else’s work?
• Most of the activities of librarians and library
users is protected by Sections 107 and 108
of United States Code, Title 17.
• Section 107 is often referred to as the “Fair
Use” section.
Section 107. Limitations on
exclusive rights: Fair use
• Reproduction for purposes of criticism, comment,
news reporting, teaching scholarship, or research,
is not an infringement of copyright.
• 4 considerations:
–
–
–
–
Purpose of the use
Nature of work
Amount and Substantiality
Effect of the use
http://www.copyright.gov/title17/92chap1.html#107
Section 108. Limitations on
exclusive rights: Reproduction by
libraries and archives
Pertinent clauses include:
• a. 1 copy can be made and the copy can be
distributed.
• d. Library can copy and distribute 1 article or small
part of some copyrighted work and no effort is
needed to get the copy back, nor does the library
need to know anything about the end user’s
purpose
http://www.copyright.gov/title17/92chap1.html#108
The contract effect
• Any contract/license you sign that forbids
rights otherwise protected by copyright law
trumps USC-17§107 and USC-17§108.
Meet the Governor
Licenses are established to govern the
following:
• Terms/definitions
• Authorized and nonauthorized uses
• Duties
• Jurisdiction
• Legal remedies
• Modification/cancellation
1. Key definitions
• Traditionally the first section
• Definitions provided for all subjective terms,
often including:
– Dates
– Fees
– Authorized users
– Publisher/Provider/Intermediaries
– Products
2. Uses – authorized and not…
First, the authorized:
• Storage
• Reproduction
• Sharing
• Incorporation into other works
Means of distribution
3 typical stances on distribution allow for
interlibrary loan:
• Every way except electronic
• Electronic only by secure transmission, i.e.
ARIEL
• Any format by any means
Example: NetLibrary
2. Copyrighted Works.
a. ... Member agrees that any use of eBooks by
Member and its Patrons is governed by and will
comply with applicable laws, including without limit
U.S. copyright laws. Member acknowledges that it
and its Patrons have no right to make copies of any
eBook, or any portions thereof, except to the extent
permitted by applicable copyright laws and neither
it nor Patrons have any right to grant any third
parties the right to use any eBook (for purposes of
this sentence, third parties does not include
Patrons).
Example: Project MUSE
2. Uses – authorized and not…
Now the not-so-authorized:
• Use for commercial purposes
• Alter appearance of product
3. Duties
• Obligations for both parties spelled out
• Typically include:
– Commitment to privacy
– Access and network performance
4. Jurisdiction
• Jurisdiction is the right and power to
interpret and apply the law; also refers to the
territorial range of authority or control.
• Governing clause defines where disputes
shall be settled and whose law is applicable.
4. Jurisdiction
• Avoid UCITA jurisdictions
– MD, VA
• Avoid non-U.S. laws/jurisdictions
Stuck with UCITA? Opt out!
• Explicit opt-out language in your contract
• Example from Johns Hopkins University:
This Agreement shall be governed by the laws of the state
of Maryland. As specifically provided by Maryland Annotated
Code, CL, Section 21-104, the Parties agree that this
Agreement shall not be governed by the Uniform Computer
Information Transaction Act (UCITA) as adopted in Maryland
under Title 21 of the Commercial Law Article of the
Maryland Annotated Code, as amended from time to time.
This Agreement shall be governed by the common law of
Maryland relating to written agreements, as well as other
statutory provisions, other than UCITA, which may apply and
shall be interpreted and enforced as if UCITA had never
been adopted in Maryland.
5. Legal remedies
• Indemnity – are you on the hook for
someone else’s expenses?
• Omission – what does something mean
when it’s not there?
6. Modification/cancellation
• Amendments
• Severability
• Cancellation
Can we make some changes?
• Review by legal counsel…
• Overwrites, strikethroughs, and addendums
• Both parties must agree
Licenses and collection
development
• Bundling
• E-metrics
• Access policy
• Significant impact on resources
Efforts to simplify: SERU
• Shared Electronic Resource Understanding
• Commitment via registration and statement
in purchase communications
– “In the absence of a separate license
agreement, ______ follows the SERU guidelines,
as published at the NISO SERU website:
• http://www.niso.org/workrooms/seru
SERU continued
• Addresses:
– Subscription
– Authorized Users
– Use of materials
– Inappropriate use
– Confidentiality & Privacy
– Online performance and service provision
– Archiving and perpetual access
Efforts to Simplify: SERU
?
Efforts to Simplify: SERU
Efforts to Simplify: SERU
Efforts to simplify: Liblicense
• Attempt to help librarians get a grip
• Terminology
• Examples
• Best practice models
• http://liblicense.crl.edu
Licensing variations
• Copyleft
– http://en.wikipedia.org/wiki/Copyleft
• Creative Commons
– http://creativecommons.org/license/
Thank You for Attending!
Questions?
• Professional
Development
• 1.800.999.8558
• http://www.lyrasis.org
• Russell Palmer
• russell.palmer@lyrasis.org