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Licensing Fundamentals for Librarians
The increase in the use of licensed material on campuses, both in the library and in online courses has been impressive. While it is difficult to document the amounts being spent on licensed materials for online courses, figures for library spending have been well-documented. Those gathered and released by the Association of Research Libraries (ARL) indicate that, as of 2002-2003, expenditures for electronic resources consumed, on average, 25% of ARL institutions’ library budgets, amounting to some $228 million spent annually. Even more stunning, ARL library spending on electronic serials increased 171% since the 1999-2000 survey and by more than 1800% since such spending was first reported in 1994-1995.
Today’s library is a wealth of digital resources, both free and purchased, that includes e-everything – e-databases, e-journals, e-books, e-reserves, accompanying software and applications, movies, music, games, and so on. All of these resources are governed or accompanied by licenses, whether negotiated or non-negotiated. License agreements are a fact of life now, which means the resource (or more accurately access to the resource) is leased, rather than owned. This is a huge shift from past and current practice for print materials. That is, when a library acquires print materials, either journals or books, it owns the physical copy, and it owns it forever. Same for you at home. Under the First Sale doctrine of copyright law (section 109), the library or owner of the physical copy can lend or resell it. In the world of journals, if a library cancels its print subscription, it still has the print copies on the shelves for the years it subscribed. Not necessarily so under the licensing business model.
Licensing agreements are unavoidable if you wish to access these products. They are a means of controlling their use. Therefore, it is essential that libraries negotiate licenses that account for their users’ needs and recognize the acquired obligations to their licensors.
The starting point for your licensing process is to ask and find answers to the following questions:
• Who “owns” this license?
-That is, who will shepherd this license through channels from start to finish?
• What is the basic licensing process on your campus?
-That is, does the library negotiate the license or is that done by another campus unit like Purchasing or Legal Affairs?
• Who signs the license?
-That is, does the library have the necessary delegated signature authority from campus administration to bind the university by contract? Some libraries do, some do not. If you don’t know, in writing, you don’t have it.
• Who will “live” with or administer the license?
-The library will. Even if the library does not have signature authority, it is probably in the library’s best interest to handle the initial license review and negotiation. The other institutional resources, like Legal Affairs and Purchasing, will probably focus on the presence or absence of general contract terms, like indemnification, limitation of liability, and jurisdiction of disputes. They will not have the librarian’s knowledge of and familiarity with the resource or the same concerns about permitted uses (fair use), archival rights, or authorized users, to name a few. This is why the librarian must not abdicate a controlling role in the language of the license, whether through the actual negotiation or articulate communication of library values to another negotiator.
Library Characteristics and Principles
If you are indeed interested in improving or setting up an efficient and effective licensing process and workflow, familiarity with your campus practices (above) and a good working relationship with your non-library campus colleagues is a must.
But it is equally important to remind yourself and/or your negotiating team of fundamental library principles and characteristics. Though these may be obvious to you, they may not be clear to your vendor/licensor. More significantly, they may underpin your need for particular license terms.
For example, what does a library do?
• Acquires information resources (buys or buys access)
• Disseminates information (through lending, on-site or online availability)
• Archives those resources for the future.
A license that interferes with these functions is unacceptable.
What doesn’t a library do?
• Buy access only and for a limited time (caveat: this may vary with the resource)
• Police user behavior for intellectual property violations
• Promise or guarantee certain user behavior
• Indemnify licensors
• Waive state and federal rights
• Ignore university policy
Library Licensing Principles
• Association of Research Libraries (ARL) Principles for Licensing Electronic Resources