Misconceptions About Licensing Electronic Content
In this post, you’ll gain a greater understanding about myths and misconceptions concerning licensing electronic content. Licensing electronic content is a skill that is acquired over time and a first step in learning how to negotiate and interpret digital license agreements is eliminating myths and misinformation and learning basic facts and rules about electronic content licensing.
Myths and Misconceptions About Licensing Digital Content
Misconception #1: Not all licenses are negotiable.
Sure, some click through and online digital licenses may now allow room for negotiating terms that fit your needs, but most other licenses are negotiable. That means that when a license for a new database or electronic periodical lands in your email inbox or on your desk, look at the wording of that license, the terms and conditions, with a critical eye. Does the license work for you? How would you change the license? Best to approach your licenses as if they are negotiable. But don’t just assume the vendor or publisher or content owner is going to ask, “what terms would you like to negotiate?” It is often up to you to let the other side know that you will be negotiating the terms and conditions offered to you in the digital license so that they meet 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. Most licenses for the use of electronic content will be interpreted by non lawyers so it’s best to have a plain language license that a non lawyer can easily understand. This will go far in ensuring that the licensed content is used according to the terms and conditions of the license.
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. Access a lawyer on an as-needed basis.
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. What is considered an ideal license duration? This is subjective but one to three years terms are popular.
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 (called “third parties”) 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. There are some model licenses that you can use as education tools and also even as checklists to ensure that your licenses are addressing important and relevant issues.
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.
Need to learn more about licensing digital content, negotiating licensing agreements and interpreting licensing agreements? Consider the online program for non lawyers who manage copyright and licensing issues. Click here for information about the Copyright Leadership Certificate.