This article sets out commonly asked questions about licensing digital content. The answers to these licensing questions will help librarians and others who negotiate licenses for the use of digital content such as electronic periodicals and databases.
What would a “perfect” digital license contain?
There is no such thing as a perfect license. Each agreement must reflect the needs and requirements of the two parties involved. Although some model licenses have been developed, each situation is unique, and you must ensure that your license meets the particular needs of your library and the content owner with whom you are entering the license. The “perfect” digital license would be one that sets out terms and conditions which satisfy both the library and content owner.
Are a license and an assignment the same thing?
No. A license is mere permission to use content according to specific terms and conditions. An assignment is an outright purchase of the rights to that content. Most content used by libraries is licensed.
Must all licenses be in writing?
They should be. This is not always necessary, but it is a good idea, since it is a good summary of your negotiations and constitutes a single document setting out the terms and conditions of use of content. It also helps in managing multiple digital licenses entered into by libraries. U.S. state law and Canadian provincial law have different requirements regarding when a legal agreement must be in writing.
What if the content owner does not provide you with a written license?
Ask about terms and conditions. Ask the content owner if there is a license with terms and conditions of use set out on his website or if he could e-mail or otherwise send you a copy of that license. If a license is not available, ask the content owner if he could set out the terms and conditions of use of the content in a letter to you so that you have a record of the nature of the license. [spacer height=”20px”]Alternatively, your library could develop and draft a standard license agreement which you could send to the content owner in this and other situations.
What if a license is not negotiable?
Most things are negotiable. Other than click-through, webwrap, or shrinkwrap agreements, most licenses are subject to some discussion and negotiation. If you are faced with a license that does not meet your needs and does not appear to be negotiable, always ask the content owner about the portions of the license that you would like amended and try to open discussions and negotiations to ensure that the final license meets your needs.
Why do some libraries get “deals” on their licenses?
A “deal” would mean that the library is satisfied with the terms and conditions it has negotiated in its license. In order to obtain the best possible license for your needs, you must know your library’s needs, and learn to negotiate and communicate with the content owner. A deal may also be perceived as a special price, favorable terms and conditions, discounts based on existing relationships with the content owner, or a convenient length and scope of the license. Negotiating as a group or consortium may sometimes lead to special deals, as may a long-term relationship with a content owner.
Can you cross out parts of a license with which you do not agree?
You may “cross out” portions of the license, but both parties should initial those crossed-out portions or any added penciled-in portions when they sign the agreement.
Our legal department will not approve the content owner’s proposed license, but the content owner will not change the offending sections. What should we do?
This is a judgment call. Are you allowed to sign a license with which your legal department does not agree? Is it in your best interests to do so? Carefully examine the reason why your legal department is opposed to the license. Why is the content owner so inflexible about these offending sections? Will these sections be harmful to your library, or to the use of the licensed content? What is the liability of your library for including or omitting certain terms and conditions? Is it possible to obtain the same or similar content from another source?
Perhaps the content is available through a consortium, which you could join, with terms your legal department could accept. Failing that, it would be worthwhile looking at your next best option: either finding another product that can at least come close to meeting your information needs, or finding the same one as part of a package with an aggregator, which would likely have different license terms.
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