Misconceptions about Licensing Electronic Content and E-Rights
Here are some common misconceptions about licensing electronic content that I consistently hear:
Misconception #1: Not all licenses are negotiable.
Almost every license is negotiable, but often you have to ask the other side if they are willing to negotiate so that you will have a license that meets your needs. Always remember to only accept a license and arrangement that works for you in your particular circumstances.
Misconception #2: Licenses must be in “heretherewithto” language.
It is best for everyone to use plain English in licenses and not technical or legal language. Say what you mean and put that in writing. If the language is unclear, ask the other side what things mean. Define terms in the license that are unclear.
Misconception #3: I need a lawyer.
Often content owners and users know more about digital licensing than lawyers. Do not be intimidated by not having continuous access to a lawyer. Do your homework and ask questions so you are comfortable with the arrangement into which you are entering.
Misconception #4: Renegotiating every year is mandatory.
Nothing is mandatory! Negotiating is time-consuming and costly. At the same time, technology is changing rapidly and so is the way we all use digital content. Lengthy durations for license agreements may not be appropriate, so consider an automatic renewal clause, provided that both parties are satisfied with how the license is working out for them and provided each side has an opportunity to positively opt-in to the renewal. Do not include automatic renewal clauses without conditions set out in the previous sentence.
Misconception #5: You can control your users.
The license agreement you sign is between you and either an owner or user of content. Your license only contractually obligates you and that owner or user. As such, you cannot agree, or expect the other party, to police subsequent users of that content. However, you may wish to educate staff and researchers about legally using licensed content, and obligate any user licensing your content to do the same.
Misconception #6: You may restrict fair use or fair dealing.
Parties to a license may agree to limit fair use or fair dealing between the parties subject to the agreement. However, any other persons are not bound by that agreement. These persons may apply the relevant copyright law to their use, which means that fair use or fair dealing, would apply to that licensed content.
Misconception #7: Standard licenses are the answer.
Each situation is unique. Although model or standard licenses may seem like the answer to avoid costly and time-draining negotiations, you must always look at your own particular situation and find an arrangement that is suitable to your needs.
Misconception #8: One side always loses in negotiations.
In the ideal world, negotiations should be “win-win.” In other words, both parties should be satisfied with the end result. This, of course, is not always possible. By being prepared before entering into negotiations and by understanding your needs as well as the needs of the other party, you will be taking the right steps to finding an agreement satisfactory to both sides.
Resources on Licensing
Self-study online courses on licensing offered by the American Library Association (ALA)