Tackling licensing issues is now an unavoidable everyday occurrence in most libraries, many librarians and information professionals didn’t learn this subject matter in school. Some librarians are comfortable dealing with licenses, from negotiating to interpreting them. Many others feel that these contracts should be the domain of lawyers. This article assists you in tackling licensing issues in your library.
Just as digital content itself is largely unavoidable, librarians can’t avoid this new job duty of acquiring, negotiating, interpreting and managing digital content licenses. The information and tips below are written from the perspective of the librarian and information professional as a user or licensee of someone else’s digital content. This includes electronic databases, journals and periodicals. However, more and more libraries and organizations are licensing content they own, such as manuscripts or images, to others. You will find these tips helpful from the perspective of either content owner or licensee.
Licensing Frustrations in the Library
Along with license agreements often come frustrations, such as the following:
- The fact that libraries now have to enter into legal agreements just to access content for their “shelves”
- Access to lawyers isn’t always available or immediate, and it can be costly
- Technology outdates agreements that were perfectly fine at the time of signing
- Electronic uses of content must be monitored or regulated to some degree, whereas patrons can freely roam libraries’ print bookshelves without the same restrictions
- Some vendors and other content providers offer supposedly nonnegotiable licenses or licenses that don’t work for your library
- The party with whom you’re negotiating a license knows less than you, making the negotiating process more difficult and requiring you to educate them
- The cost, time and new knowledge required for negotiating a license, which is not needed when acquiring print materials
- Ambiguity or inability to archive electronic materials that you could previously keep on bookshelves indefinitely (or until they were destroyed or became obsolete)
Unfortunately, there’s no magic answer to overcoming these and other frustrations. As always, educating yourself about digital licensing and learning from your own and your colleagues’ experiences will help mitigate these frustrations.
Tackling Licensing Issues You May Face
A content owner’s licensing terms and conditions are ill-conceived and poorly written. Is it a librarian’s role as a licensee to help a licensor improve their contract language?
While it’s not your role per se to educate licensors, it is in your library’s best interests for its license agreements to be written as clearly as possible and with terms that are favorable to your needs. You or other future licensees may reap the benefits of the time you invest in helping the licensor improve their contract. And, the goodwill you gain in doing so may help you negotiate terms and conditions more favorable than in the past.
A publisher has provided a license that contains hyperlinks to separate documents addressing overarching terms and conditions. We do not know when changes are made to these items.
All terms and conditions of a license should be spelled out in the license itself, or in appendixes to the license, so both parties fully understand what they are agreeing to. Ask for a single document to act as your license, and do not accept a “piecemeal” license that may be confusing with parts that may contradict themselves. This also benefits future administration and interpretation of the license agreement.
What should we do when the account manager for a licensor makes verbal assurances regarding future price increases?
While your account manager may have the best of intentions, you don’t know how long that person will be in their role and whether others in their company are aware of verbal promises they’ve made. Any terms and conditions that you’re relying upon should be in writing in your license.
How are we to know what all the terminology in a license agreement actually means?
It’s important to educate yourself about licensing terminology generally. However, all terminology used in a license agreement should be defined within the agreement, unless terms are used in the ordinary dictionary sense. Even then, it could be beneficial to include such terminology in the agreement’s Definitions section, either at the beginning of the license or in an appendix attached to it.
I believe that interlibrary loan of licensed content is covered under fair use, yet the language in many licenses is restrictive and prohibits this necessary activity. How can we enable libraries to practice ILL without violating agreements?
If ILL is important to your library, you should negotiate an ILL clause with the licensor. If the licensor will not agree to terms that work for you, consider finding a different licensor for the content you need.
My hands are tied. The licensor of the content my library needs has provided a nonnegotiable contract.
License agreements are rarely nonnegotiable. Before responding to the licensor, ensure you understand your needs and then assess how the proposed contract does and doesn’t meet them. Talk to the licensor about your needs and the gaps in the proposed contract, and then commence a negotiation process. At the end of the day, you both want the license to go ahead, so be patient and continue to explain your needs and what will get you to sign the agreement.
See our article Misconceptions About Licensing Electronic Content.
Education and Experience Lead to Confidence in Tackling Licensing Issues
With education and experience, librarians and information professionals can be as comfortable tackling licensing issues as other parts of their role. Remember, it’s best to enter into license negotiations with an open mind and lots of patience. Hopefully at the end of the day you’ll acquire the content and license agreement that best meet your needs.
For more practical information on tackling licensing issues, see our eTutorial
Introduction to Digital Licensing.
For an in-depth understanding of U.S. and global copyright principles and legally using
third-party content, see our fully online Copyright Leadership Certificate. It also provides practical
tools and strategies you can customize to your particular circumstances.