Licensing Basics

This week we start two week's of discussion on licensing. Licensing is at the top of the list of most important aspects of electronic resource management. We start our coverage now because it was necessary to learn about the technical and the economic aspects of ERM work as a prerequisite.

First, we should not that there is a hierarchical difference between copyright law and contract law. In short, although copyright is a kind of temporary right (ante public domain status), unlike other types of rights (e.g., legal or civil rights), it is a right that can be transferred or sold by way of a contract. Contract law, thus, supersedes copyright law.

For example, licensing agreements offer copyright or intellectual property owners a contractual framework. This framework functions as a contractual agreement among two or more parties, and it enables the parties involved to participate, within some range of time (all contracts must have starting and ending dates), in an owner's intellectual property under certain conditions. Librarians enter into licensing agreements of all kinds. The types of things that are licensed include bibliographic databases, ILS/ERM software, and of course, e-content. Unfortunately, regarding the latter, entering a licensing agreement for e-content means that libraries do not own that content but only have access for a period of time, as defined in the contract. This is unlike print works, which fall under the first-sale doctrine. That is, once a library ones, for example, a physical book, it owns it for as long as they want to or can own it. Basically, the existence of a licensing agreement between a library and an intellectual property owner entails lack of ownership of the item (think of item as defined by the Functional Requirements for Bibliographic Records FRBR model).

The readings are pretty straightforward, but let's preview some basics, which are nicely outlined in Weir (2016) (not in the reading but referenced below):

  • There are two general types of licensing agreements:
    • End user agreements are generally the kind that people accept when they use some kind of software or some service.
    • Site agreements are the kinds of agreements librarians get involved in when they negotiate for things like databases. Here, site refers to the organizational entity.
  • There are several important parts of a standard license. They include:
    • Introductions: this includes information about the licensee and the licensor, date information, some information about payments and the schedule.
    • Definitions: this section defines the major terms of the contract. Weir includes, as examples, the licensee, the licensor, authorized user, user population, and whether the contract entails a single or multi-user site.
    • Access: This covers topics such as IP authentication and proxy access.
    • Acceptable use: Included here are issues related to downloading, storage, print rights, interlibrary loan (ILL), and preservation.
    • Prohibited use: What cannot people do: download restrictions, etc.
    • Responsibilities: What the licensee's (the library) responsibilities. Be careful about accepting responsibility for actions that the library would have a difficult time monitoring. Then also, what are the licensor's responsibilities. This might include topics such as 24 hour access.
    • Term and terminations: Details about the terms of the contract and how the contract may be terminated. Be aware that many libraries are attached to either municipal, county, or state governments and must adhere to relevant laws.
    • Various provisions

As an example, the California Digital Library, via the University of California, provides a checklist and a copy of their standard license agreement.

The checklist covers four main sections and is well worth a read:

  • Content and Access
  • Licensing
  • Business
  • Management

We have three additional readings this week. One of the readings covers SERU: A Shared Electronic Resource Understanding, by NISO. We also have a short article by Regan that provides some guidelines on becoming competent on licensing.

SERU, Shared Electronic Resource Understanding, is a NISO collaborative document that helped standardize some aspects of the licensing process and can be used as "an alternative to a license agreement" if a provider and a library agrees to use it. Like the standard licensing structure that Weir (2016) outlines, SERU includes parts that describe use, inappropriate use, access, and more but also posits other stipulations, such as confidentiality and privacy.

The other reading is the NASIG Core Competencies for Electronic Resources Librarians. We have already visited this, and although it doesn't specifically cover licensing, I added it to this week's reading list for a couple of reasons. First, it's a reminder that when we talk about electronic resource management, we talk about a comprehensive list of responsibilities, skills, technologies, and more, and I need to keep this on our radar. Second, because the Regan reading specifically mentions these competencies, and I thought it would good to reintroduce them here.

This week, after reading the material, I want you to focus on the Regan article and some of the questions raised there. Regan raises important questions about the licensing process, about effective communication, and about advocacy. I want you to comment on these issues, and I want you to answer some questions that Regan raises. You can do that by searching the web and library websites. In fact, at the beginning of the semester I asked you to subscribe to the SERIALST email list. It's now time to draw upon that and any discussions you've seen in those lists that are related. You can usually search the archives of those lists, especially since traffic has been a bit light recently. Regan mentions some other sources, such as LIBLICENSE and copyrightlaws.com. Any of these are fair game for our discussions, but the latter is a commercial entity that provides material and tutorials for a kind of tuition. It might be useful to know about it, but explore only if you want. However, LIBLICENSE provides model licenses as well as links to additional model licences, including the above mentioned California Digital Library Standard License Agreement. The LIBLICENSE model license includes even more details, such as types of authorized uses, and details that include provisions on:

  • course reserves
  • course packs
  • electronic links
  • scholarly sharing
  • scholarly citation
  • text and data mining

References

Regan, S. (2015). Lassoing the Licensing Beast: How Electronic Resources Librarians Can Build Competency and Advocate for Wrangling Electronic Content Licensing. The Serials Librarian, 68(1–4), 318–324. https://doi.org/10.1080/0361526X.2015.1026225

Weir, R. O. (2012). Licensing Electronic Resources and Contract Negotiation. In R. O. Weir (Ed.), Managing electronic resources: a LITA guide. Chicago: ALA TechSource, an imprint of the American Library Association.