Licensing Digital Content

A Practical Guide for Librarians

Lesley Ellen Harris

• Publisher: ALA Editions
• Year: 2017
• Print ISBN:
  9780838916308
• eBook ISBN:
  9780838916797
• Topic: Languages & Linguistics
• Subtopic: Library & Information Science
• Index: Languages & Linguistics

ONE

When to License

A wise man hears one word and understands two.

—Yiddish proverb

The digital revolution has resulted in an important, and sometimes daunting, change in the way libraries, museums, archives, educational institutions, and other nonprofit and for-profit organizations procure, access, share, and store information available for their own use and for use by their patrons. In the pre-Internet and pre-electronic days, libraries and organizations regularly purchased print copies of materials for their use and collections. Libraries owned physical copies of these materials. We are now witnessing a revolution in how information and content is acquired, stored, shared, and accessed. With this revolution comes a new set of administrative and legal issues that librarians and other nonlawyers must face, which some say is a Pandora’s box. No longer are librarians focused on copyright law issues like photocopying in their libraries, or whether showing a video constitutes a public performance. Librarians, information professionals, and other nonlawyers have become negotiators and interpreters of legal agreements that open the door to a wide variety of electronic content for their patrons and organizations. Licensing electronic content is now an expected part of collections management and content acquisition, especially as more and more collections and research materials budgets are dedicated to serials, databases, and other materials available only in a digital format. Many librarians and other nonlawyers are already involved with licensing electronic or digital information, and many others will become more involved in this process in the near future.

Licensing electronic content rather than physical ownership of print copies raises a whole series of issues not previously experienced by librarians. Unlike signing a purchase order for a new print book or print periodical, licensing digital content often involves negotiating a license agreement or contract with the owner of the digital content for use in a library. At the very least, it involves understanding and interpreting such agreements, whether they are negotiated by a consortium on your library’s behalf, are nonnegotiable, or are individually negotiated by your library. But when do you need a written license, and how does the process begin? What terms and conditions are in the best interests of your library or organization? What do these terms and conditions mean?

When Does Licensing Come into Play?

Licensing comes into play when you want to use electronic or digital content such as a database or periodical, or when someone wants to use such content owned by your library or organization. It may begin with a telephone call, an e-mail, a postal mail letter (commonly referred to as “snail mail”), an order form, a visit to a website, or when you are offered a written license agreement by a publisher or vendor.

Consumer/Licensee

As a consumer of content, you need a license agreement whenever you “use” the content of others. For example, you want to use someone else’s photograph on your website, or you want to access an online database or periodical. “Use” in this context, and in this book, includes many different concepts or rights that are set out in domestic or national copyright statutes in the United States and in countries around the world, and in international instruments such as copyright treaties. Among these rights are the right to reproduce or publish in digital or print form, transmit over the Internet, and perform the work in public. “Use” also refers to access to, and the using of, content that is protected by copyright and is not in the public domain.

The term “licensing” may also refer to the contractual arrangement of accessing public domain content. In this context, licensing provides access to that content and may be the only way to legally access that public domain content, at least in that particular format (e.g., a database).

As a library or consumer of copyrighted materials, you may be involved in many situations in which you need to access electronic or digital content and to license that content. You may need to license

• • an online subscription to a journal or database
• • content compiled by an aggregator such as LexisNexis
• • an encyclopedia or other collections of content
• • financial information, stock market sources, and news feeds
• • computer software, CDs, and DVDs
• • still images, including photographs, illustrations, and digitized slides
• • moving images, including film clips, documentaries, and other videos
• • nondigital content which you scan or digitize yourself (including text, still and moving images, and music)
• • content for your website, intranet, or social media site

Generally, libraries and archives see themselves as consumers or licensees, using the content of others. However, more frequently libraries and all sorts of organizations are licensing the content they, and their employees, create and own, and are therefore also licensors. This is especially true as intellectual property (IP) continues to grow as a valuable asset and owners of that IP are more likely to value and protect those assets, and also exploit and publish them and possibly earn money by doing so, thereby enhancing their reputation as the owner of that IP.

Content Owner/Licensor

As a content owner, you require a license agreement whenever someone else “uses” your content. Content that you might own includes photographs and other images, presentations, reports, manuscripts, audio recordings, computer software, and audiovisual works. As an owner of content, you may be involved in some of these possible scenarios:

• Licensing a handful of works to be used in association with works by other creators. For instance, licensing three photographs from your library’s collection for use in a website or on social media with other photographs, text, animation, and so on.
• Licensing content owned by your organization that would constitute all of the works to appear in a new digital product. For example, your library might license digital rights to its manuscript collection for use by a developer who would then create a DVD of manuscripts owned by your library.
• Licensing works for “relicensing” purposes. For instance, you might license the rights to digitize your organization’s newsletter to one company, which will then relicense these rights to DVD producers, website owners, educational institutions, corporations, and others.

The focus in this book is generally from the perspective of a library or other organization licensing the content of others. However, if you are licensing your own content, you will go through the same procedure as a user of content, and you may use the same licensing checklists as provided in chapters 4 and 5 and as summarized in appendix C, although you will have to approach the issues from a different perspective in order to protect your library or organization’s interest from the interests of a content owner.

Other Agreements

Aside from licenses for using digital content, there are other agreements you may need in the digital world, including the following:

• • Website and social media terms and conditions of use
• • Privacy policy or release
• • Website, blog, or other development agreements
• • Photograph/image releases
• • Electronic mailing list, blog, wiki, or Twitter and other social media agreements with employees and others who post messages and comments
• • Click-through or web-wrap agreement for online computer software and content

Although these agreements may not be content licensing agreements per se, many of the clauses discussed in this book are helpful when entering into such agreements.

Negotiable and Nonnegotiable Licenses

License agreements may be negotiable or nonnegotiable. A negotiable agreement is one where the parties to the agreement discuss and agree upon what terms and conditions should be included in the agreement. When licensing digital content for use in your library or organization, you will be able to negotiate with the content provider various terms and conditions in the agreement, such as the price of the content and who may use that content.

A nonnegotiable agreement is one where the terms and conditions in the agreement are set forth by one party and must be accepted by the other party if they want the goods or services supplied. For example, you may find a nonnegotiable agreement when purchasing computer software online. A company like Microsoft sets out the terms and conditions of use of its software. If you want to purchase and use its software, generally you must accept the terms and conditions of its agreement. You accept these terms before downloading the software from the Internet, and you agree to them by pressing the “I Agree” button on a standard license.

However, some licenses that appear to be nonnegotiable are often negotiable. For example, if a vendor offers you a seemingly standard license for an electronic journal, and that license does not meet your library’s needs, ask for changes in the license to reflect your needs. Always contact the content owner should you need to discuss terms and conditions that make a license (even one that appears to be nonnegotiable) more workable for your circumstances. Chapter 6 deals with negotiation issues and tips relating to license agreements.

Understanding the Concept of Electronic Materials

One of the major changes in acquiring electronic content, as opposed to print journals, is that in many circumstances, libraries and organizations now pay for content they never physically acquire. For instance, a library pays for an online journal that it may never see in a print form (other than perhaps printed from its own printer). What the library is paying for is access to that online journal, not physical ownership of something it can place on its physical bookshelves. In addition, the scope of that access or use of the online journal may be more limited or perhaps a bit different than the use of the print journal. For instance, it is not necessary to obtain permission (as set out in the terms and conditions of the license) to browse through a print journal, but permission may be necessary to access online content or to share an article with a colleague.

Libraries are very concerned about having access to archives of digital content. Whereas a print book may be kept and accessed from a bookshelf indefinitely, access to digital content has a defined duration. This is further discussed in various parts of this book.

Furthermore, although print publishers are concerned about their works being photocopied, electronic publishers may feel even more threatened since it is so quick, easy, and inexpensive to make an exact copy of an electronic work. It is arguable that controlling and monitoring electronic works is therefore a larger problem in the electronic world than in the print world. In this regard, in addition to copyright laws, technologies such as encryption, password-protected access, watermarking, and the use of PDF files are sometimes used to ensure authorized uses only. DRM, or digital rights management, is described in chapter 3.

In addition, the types of uses requested by libraries and their patrons are different with digital content than print materials. For instance, in the academic world, print course materials often include excerpts from articles. With electronic library reserves and course materials available online and in course management systems, it is becoming more commonplace for entire articles—and not just excerpts—to be part of these electronic collections. Many publishers are not opposed to this, provided they are fairly compensated and there are some “controls” in place to protect against further or unauthorized copies being made.

Five Key Licensing Concerns

Given the relative newness of licensing content in a digital form, libraries and content providers have several concerns and needs that should be taken into account in any discussions or negotiations of license agreements. Throughout the licensing process, both parties should keep in mind that the license they sign should be a “win-win” situation. Although at times it may seem like each party has opposite interests, they are both aiming toward the same goal—fair access at a fair fee. For a library, “fair” may mean use according to its needs. For a publisher or other content owner, “fair” may mean controlled access for authorized uses. For both parties, “fair” would also relate to the fee being paid for the content.

The following are five key elements libraries and organizations should aim for when licensing digital works. These elements may act as basic underlying principles upon which a license may be based. Specific details based on these principles are discussed throughout this book.

1. 1. Ease of access to the works being sought (e.g., easy online retrieval or download)
2. 2. “One-stop” transactions where no additional permission, payments, or clearances are required once the library or organization has paid for the licensed content
3. 3. Clear definitions of what uses are permitted and what uses are not permitted, by whom and where
4. 4. Access beyond the termination of the license agreement (where necessary)
5. 5. Liability or responsibility regarding the use of licensed content by employees, researchers, patrons, and the public. For instance, how far must a library go to ensure that a researcher is using an article from an electronic publisher according to the terms and conditions of the license agree...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Note to Canadian and Other Non-U.S. Readers
• Quick-Starter Tips for a Successful Agreement
• 1. When to License
• 2. Demystifying the Licensing Experience
• 3. Learning the Lingo
• 4. Key Digital Licensing Clauses
• 5. Boilerplate Clauses
• 6. Un-Intimidating Negotiations
• 7. Questions and Answers on Licensing
• 8. Go License!
• Appendix A. Fair Use–Section 107 of the U.S. Copyright Act
• Appendix B. Interlibrary Loan–Section 108 of the U.S. Copyright Act
• Appendix C. Digital Licensing Clauses Checklist
• Glossary
• Online Resources
• About the Author
• Index