In this post, you’ll gain a greater understanding about digital licensing as we debunk myths and misconceptions about licensing electronic content and answer commonly asked digital licensing questions. Licensing electronic content is a skill that’s acquired over time. A first step in learning how to negotiate and interpret digital license agreements is identifying and eliminating myths and misinformation through learning basic facts and information about licensing digital content.
See our Digital Licensing courses.
Myths and Misconceptions About Licensing Electronic Content
Below are some common myths and misconceptions about licensing electronic content. Can you think of others? Let us know in the comments!
Misconception #1: Not all licenses are negotiable
Sure, some click-through and online digital licenses may not 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, you should look at the license’s wording (terms and conditions) with a critical eye. Does the license work for you? How would you change it? Does the license fit your needs or should you ask for changes to be made to the terms and conditions of use?
It’s always best to approach your licenses as if they’re 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’s often up to you to let the other side know that you’ll be negotiating the terms and conditions offered to you in the digital license so that they are perfect for your needs and how you’ll be using that licensed content.
Always remember to only accept a license arrangement that works for you in your particular circumstances.
Misconception #2: Licenses must be in “heretherewithto” language
It’s best for both sides in an agreement (i.e., licensor and licensee) to use plain English in licenses. Avoid technical or legal language whenever possible. 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 nonlawyers, so it’s best to have a plain language license that a nonlawyer can easily understand. This will go far in ensuring that the licensed content is used according to the terms and conditions of the license.
You may also be interested in our article Licensing Policy Sample.
Misconception #3: I need a lawyer
Often content owners and users know more about digital licensing than lawyers. Don’t be intimidated by not having continuous access to a lawyer. Do your homework and ask questions so you’re comfortable with the arrangement you’re entering into. 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 into the renewal. Don’t include automatic renewal clauses without the conditions set out in the previous sentence.
What’s considered an ideal license duration? This is subjective, but one- to three-year terms are popular. Again, think about what license duration works for you. Look at your previous licenses and see what durations have been best with your library or organization’s needs and uses of licensed content.
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”) aren’t 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. If the license restricts fair use or fair dealing and that doesn’t work for you, speak up and let the content owner know that.
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’s 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, isn’t always possible. By being prepared before entering into negotiations and by understanding your needs as well as the needs of the other party, you’ll be taking the right steps to finding an agreement satisfactory to both sides.
Q&A: Digital Licensing Questions
The answers to these commonly asked questions about digital licensing will help librarians and others who negotiate licenses for the use of electronic resources such as electronic periodicals and databases.
Tip: As part of your licensing best practices, collect your digital licensing questions and any misconceptions about licensing electronic content that you come across and turn them into a question and answer fact sheet to share with those in your workplace.
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 written-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.
You may be interested in our article Monitoring Use of Digital Content.
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.
For a straightforward primer on licensing, see the third edition of Lesley Ellen Harris’ book
Licensing Digital Content: A Practical Guide for Librarians.
Need to learn more about licensing digital content, and negotiating, interpreting
and managing licensing agreements? Consider our Digital Licensing Courses as well as
our Certificate in Licensing Digital Content.