NISO Licensing Webinar (Part 1): Q&A

Below are listed questions that were submitted during the NISO Webinar, "E-resources Licensing: The Good, the Bad, the Ugly (Part 1)." Answers from the presenters, Trisha L. Davis (Head, Associate Professor and Head, Serials, Electronic Resources, and Rights Management Department, Ohio State University Libraries) and Clinton Chamberlain (Coordinator for Electronic Resource Acquisitions, University of Texas at Austin Libraries) are included.

Feel free to contact us if you have any additional questions about this webinar or about library, publishing, and technical services standards and standards development. We also welcome suggestions for new standards, recommended practices, or areas where NISO should be engaged.

NISO Licensing Webinar: Part 1
Event Questions & Answers
September 9, 2009

  1. Is signing a renewal the equivalent of signing a license, once the license has been signed?

    Answer (Trisha Davis): It depends on the language of the renewal invoice. IF the invoice refers back to a license that was previously negotiated, then no. It’s just a renewal, which falls into the realm of purchase order authority. However, many renewals have a line indicating that by signing the renewal you are agreeing to terms on the back of the form, or on their web site, etc. Any time a signature is designated as affirming the terms of a license, we have been advised to either cross out that line before we sign or have the license fully executed by your legal counsel.

  2. If a vendor signs first and you make changes and sign, is it legal?

    Answer (Trisha Davis): I think that depends upon state law. You’d need a lawyer to answer that one and there’s a lot of additional questions to answer. Do you have access to the product? Have you been invoiced? Has the licensor cashed the check? In our case, we would be happy to have access and we would not worry about not having received a signed copy in returned because the only copy we have signed is the terms to which we agree.

  3. If you make changes, and the vendor does not return a signed copy, but does not contact you, I assume you have no contract. Is that correct?

    Answer (Trisha Davis): Again, in our case, we would be happy to have access and we would not worry about not having received a signed copy in returned because the only copy we have signed is the terms to which we agree.

  4. If there is no financial consideration mentioned in an online click-through license, is it still enforceable?

    Answer (Trisha Davis): I can’t answer that. It would have to go to court. However, at some institutions you may be subject to reprimand or other negative consequences if you click-through. You’ll have to investigate through your own institution.

  5. When you require a copy by your institution, am I right to assume that a copy will be provided?

    Answer (Trisha Davis): You can assume all you want, but until you receive the copy all you have done is made the request. What is the penalty for their not sending you a copy? Are you going to hold up payment and access for your users? Are you going to cancel the order and ask for your money back? Hopefully it’s not a major issue for your legal staff. If so, then advise the licensor that you cannot renew without a copy of the fully executed document.

  6. Once you sign the contract, are you legally bound to pay the vendor?

    Answer (Trisha Davis): Yes, if that’s what the contract requires you to do. However, if you really don’t have the money and they have not yet provided access or the product, you may have room to negotiate a cancellation.

  7. What considerations need to be made for signing a contract on behalf of a consortium?

    Answer (Trisha Davis): The two key questions are: 1) has the signer been granted the legal authority to sign on behalf of all consortium members? If so, there should be legal documents in place so indicating; or 2) does each consortium member sign their own version of the contract or a Memo of Agreement to the terms? I’ve seen it done both ways.

  8. For electronic resources with authorized users "Faculty, staff and students" is it necessary to block access to walk-in traffic (people who may come into the library off the street and use resources that are IP authorized) in the library? Is there language to allow walk-in use (to alleviate the complications of restricting access)?

    Answer (Trisha Davis): Normally the workstations on the library premises are within the authorized IP range, so access will be granted. Some institutions ask all users to authenticate to even use the public workstations. In that case, the library provides temporary access by assigning a short-term ID. If you wish to allow access to the general public, the license needs to include language such as “walk-in users at public workstations in library buildings” as part of their Authorized User Definition.

  9. How does the "Fair Use" clause work with a non-US provider?

    Answer (Trisha Davis): Any non-US provider can include the Fair Use language in their license. Or, you may edit the license to include it before you sign.

  10. If any of these terms are not made available until after you have paid and gained access, are they valid?

    Answer (Trisha Davis): You have to be very careful when reviewing the license to identify and remove any language that would obligate you automatically to new terms, whether by a license revision or by language on the publisher’s web site. Some licensors will explicitly state that by using the product you are agreeing to any contractual changes that appear on their website. Do not allow such language.

  11. To what extent is the library responsible for enforcing these terms - especially at large institutions?

    Answer (Trisha Davis): I always advise libraries to watch very carefully for any language that specifically requires the library to take steps to display, educate, or enforce terms with users. You can change that language to say that the library “will take reasonable steps to educate users” but there is no chance that you can successfully educate users or assure that they will read license terms even when readily presented. There is no alternative to taking responsibility for your users activities, so be certain any such language is deleted. Look carefully at any Termination sections or mention of breach to clarify exactly the ramifications of end user behavior. If the licensor threatens to deny access due to end user behavior, don’t sign!

  12. Many of our nurses want to store articles on a shared network drive that is controlled by authorized access. I am pretty sure this is not legal; what do you think?

    Answer (Trisha Davis): It is not legal unless the license agreement specifically states that this activity may occur. I can see no reason why they would need to use precious storage space to build their own library online when access is already available.

  13. How would you recommend negotiating with a vendor for allowing reasonable or limited use of information from a resource when the vendor pushes you to define "reasonable"?
    “The term reasonable is a generic and relative one and applies to that which is appropriate for a particular situation.”
    From: TheFreeDictionary Legal Dictionary (http://www.thefreedictionary.com/reasonable)
    Answer (Trisha Davis): I would make the argument that faculty and students rarely use more than needed for their curricular or research needs. I also would advise that as the licensee the institution staff cannot police what is being used. You can then agree to allow the licensor to notify you of any instances in which they believe the usage not to be reasonable and that you will investigate.

  14. I might have missed this discussion or slide, but I negotiate to have language included about patrons who remotely access our library electronic resources rather than limit to a physical building or campus. Do you agree? I work at a distance education institution.

    Answer (Trisha Davis): I agree 100% with you on this. Limiting access to a geographical definition is simply unacceptable. Any authorized user should be allowed access from any location if they authenticate successfully through the main campus/institution servers.

  15. As more libraries convert to online only do you see language limiting ILL going by the wayside?

    Answer (Trisha Davis): Not really. There will always be the need for ILL and more publishers are realizing there is little material damage caused by this practice. The latest dilemma is how to handle ILL requests for content in eBooks. There are no broadly acceptable solutions at the moment.

  16. Re ILL, Elsevier language for e-journals is "the subscriber may print and deliver articles...," which seems to prohibit electronic transmission of the online PDF. Is that right?

    Answer (Trisha Davis): Yes, you are correct. They are asking you to make a print copy to share. This can be negotiated, however.

  17. If remote access is not spelled out in the license, I just assume that we have the right to do so as our proxy is limited only to authorized users ... is that right?

    Answer (Trisha Davis): Yes, as long as there is no other mention of access restriction due to location of the user.

  18. When it says “silent,” what does it mean?

    Answer (Trisha Davis): That the licensor has failed to discuss the use term in the license. In such cases, many libraries fall back on Copyright law.

  19. Can you talk about handling license violations?

    Answer (Trisha Davis): Good point, Joyce. Each institution needs to be prepared with a policy statement on how to handle license violations. The licensor should provide you with substantiation of the violation, such as the IP address, date, time, and description of the breach. In an academic library, you have to be extremely careful to investigate the alleged misconduct in a manner that meets the FERPA requirements.

    From the Family Policy Compliance Office (FPCO) Home (http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html): "The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education."

  20. Are any ONIX-PL workshops in the works?

    Answer (NISO): NISO will be holding a webinar later this year that will be completely focusing on ONIX-PL: "ONIX for Publications Licenses: Adding Structure to Legalese" (December 9, 2009, 1-2:30 p.m. eastern). See http://www.niso.org/news/events/2009/onixpl09/ for more information. We also welcome any suggestions for additional ways that NISO can help provide education on ONIX-PL.

    Additional information on ONIX-PL can be found at: http://www.niso.org/workrooms/onixpl/