Copyright Qs & As: License Agreements

7.1 Question: My organization has been offered a license agreement for a database. We want to license the database but cannot use it as we need to under the terms and conditions of the licence.

Answer: Except for click-through, Web wrap or shrink wrap agreements, most licenses are negotiable. If you are faced with a license that does not meet your needs and does not appear to be negotiable, explain to the publisher how an amended agreement would better meet your needs, and try to open a discussion and negotiation to ensure that the final license is one that works for you. (2006-4)

7.2 Question: How do I determine what rights should be set out in a license agreement?

Answer: Determine how the content will be used, then ensure that the license reflects these uses. It is best to determine these rights in advance to ensure that you are meeting your needs and not simply reacting to the licensing offer from the content owner. Consult various people in your organization, from your lawyer to your researchers, consultants and librarian. (2007-1)

7.3 Question: How do you define “commercial use” or nonprofit use” in a digital license agreement?

Answer: There are no guidelines or exact definitions of these and other terms in a license agreement. The parties signing the agreement need to agree on the wording of any definition. Take the time to discuss and define these and other terms as they relate to the scope of permissible uses under the agreement. Begin your definitions by a dictionary definition of that term, then modify that definition to meet your needs. (2007-2)

7.4 Question: Why do we have to pay sometimes for journals that are very old and obviously in the public domain?

Answer: There are several possibilities. One, there may be a new copyright in a collection of journals and you are paying a fee for the collection as a whole rather than the underlying individual public domain journals. Two, the journals may be edited and the new portions of the journals may have a new copyright in them. Third, you may be paying a fee to access the journals rather than a copyright fee. (2009-2)

7.5 Question: If an article has a Creative Commons (“CC”) license, does that mean that the article may be freely reproduced?

Answer: No, you need to read the CC license. There are different CC licenses allowing different uses from unlimited use of a work to very limited use of a work without authorized from the content owner.

7.6  Question:  We are negotiating a licence with a U.S. client and the client will not sign an agreement that “is governed in accordance with the laws of the province of Ontario, Canada.”  How can we proceed?

Answer:  Some U.S. enterprises including U.S. state bodies cannot sign agreements subject to the laws of a different jurisdiction than its own.  However, they may not address the issue of jurisdiction in an agreement. So leaving jurisdiction out may not be the best solution but it is a compromise solution.

7.7 Question:  Which country’s laws apply to a licensing agreement between a licensor in the U.K. and a licensee in the U.S.?

Answer:  It is best if the licensing agreement specifically states the country’s laws that will govern the license. Like all clauses in a license, this may be a matter of negotiation between the licensor and licensee. It is always best (though not always possible) to have your own country’s laws with which you are familiar to govern your agreement. (2011-2)

For information on licensing issues, select the category Licensing Digital Content in this weblog.

2 Comments

  1. Lesley says:

    Hi jb, when you reproduce portions of a work, you have to make a determination as to whether that portion use requires permission. In Canada (where I see you are based), you may want to make a determination under fair dealing and look at the quantity and quality copied as well as other factors. Each situation must be determined based on its own exact facts; there are no general rules. One way to addresses faculty is to tell them to summarize the table or other excerpts as their own summary in their own words would not be a copyright infringement.

  2. jb says:

    As part of the copyright education process, faculty are becoming aware that persistent linking is the way to go. However, a few diehards insist on distributing handouts in class – most of our agreements state that this is okay for licensed content. Here’s where it gets murky: some profs like to incorporate figures, or excerpts of text, from the articles into their class notes, which are then either distributed in class, or posted to a secure network.

    My understanding of the law is that once this copyrighted material is incorporated into another’s author’s work (in these cases, the powerpoint presentation or class notes) a derivative work has been created, independent of the original work. Often, the license usage terms do not specifically address this mash-up usage. Any thoughts on how to best advise faculty re: this practice?

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