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E-Resource LicensingOverview 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, ’06-present

• 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 non-

authorized 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

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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?Questions?• Professional

Development• 1.800.999.8558• http://www.lyrasis.org• Russell Palmer• russell.palmer@lyrasis.org