This article sets out commonly asked digital licensing questions. The answers to these questions will help librarians and others who negotiate licenses for the use of electronic resources such as electronic periodicals and databases.
As always, please do not rely on our short practical answers as legal advice or opinions. Contact an attorney should you be faced with a digital licensing issues.
What would a “perfect” digital license contain?
There’s 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’re entering into the license. The “perfect” digital license would be one that sets out terms and conditions that 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 isn’t always necessary, but is a good idea since a written license is a good summary of your negotiations. It also constitutes a single document setting out the terms and conditions of use of the 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 doesn’t provide you with a written license?
Ask about terms and conditions. Ask the content owner if there’s a license with terms and conditions of use set out on their website or if they could e-mail or otherwise send you a copy of that license. If a license isn’t available, ask the content owner if they 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. 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 isn’t negotiable?
Most things are negotiable. Other than click-through, webwrap, or shrinkwrap agreements, most licenses are subject to some discussion and negotiation. If you’re faced with a license that doesn’t meet your needs and doesn’t appear to be negotiable, always ask the content owner about the portions of the license you’d like amended and try to open discussions and negotiations to ensure the final license meets your needs.
Can you cross out parts of a license you don’t agree with?
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.
My organization has been offered a license agreement for a database. We want to license the database, but can’t use it as we need to under the terms and conditions of the license.
Except for click-through, webwrap or shrinkwrap agreements, most licenses are negotiable. If you’re faced with a license that doesn’t meet your needs and doesn’t appear to be negotiable, explain to the publisher how an amended agreement would better meet your needs. Try to open a discussion and negotiation to ensure that the final license is one that works for you.
We’re negotiating a license with a U.S. client and the client won’t sign an agreement that “is governed in accordance with the laws of the province of Ontario, Canada.” How can we proceed?
Some U.S. enterprises, including U.S. state bodies, can’t sign agreements subject to the laws of a different jurisdiction than their 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.
Which country’s laws apply to a licensing agreement between a licensor in the U.K. and a licensee in the U.S.?
It’s best if the licensing agreement specifically states which country’s laws will govern the license. Like all clauses in a license, this may be a matter of negotiation between the licensor and licensee. It’s always best (though not always possible) to have your own country’s laws govern your agreement, as you (and your lawyer) are familiar with them.
How do I determine what rights should be set out in a license agreement?
Determine how the content will be used, then ensure the license reflects these uses. It’s best to determine these rights in advance to ensure you’re 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.
How do you define “commercial use” or “nonprofit use” in a digital license agreement?
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 with a dictionary definition of each term, then modify that definition to meet your needs.
If an article has a Creative Commons (CC) license, does that mean we may freely reproduce the article?
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 authorization from the content owner.
As part of your licensing best practices, collect your digital licensing questions and turn them into a question and answer fact sheet to share with those in your workplace.
For information about the latest edition of Lesley Ellen Harris’ in-depth book on licensing, see Licensing Digital Content Book.
To enhance your knowledge and learn practical skills about licensing,
see our online course Introduction to Digital Licensing.
For other Q&A articles, see our Copyright Questions & Answers Portal.