E-resources Licensing (Part 2): NISO Webinar Q&A

Below are listed questions that were submitted during the NISO Webinar, "E-resources Licensing: The Good, the Bad, the Ugly (Part 2)." 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 E-resources Licensing Webinar: Part 2
Event Questions & Answers
September 16, 2009

  1. Are there any sample library addenda? A lot of licenses don't include the language you covered, to the library's detriment.

    Trisha Davis: The best language can be copied from the many model licenses available. At OSU we have collected sample language from a variety of sources and created a document from which we 'cut and paste' to build our addenda.

  2. When entering the license information in the ERM would it be helpful to include a reference to the actual contract clause number and/or line number so the item can be easily traced back to the location in the original contract document?

    Trisha Davis: I can see where you would think it could be helpful, but it's a lot of work to do all that annotation for the few times you need to refer to the license.

  3. If it is not permitted, why would you fill in a term note to say it is not permitted?

    Trisha Davis: I suggest you use "not permitted" only for those terms that are important to or expected by your users, such as the ability to make digital copies, scholarly sharing, ILL, etc. No need to indicate that you are not allowed to reverse engineer!

  4. Is it common that walk-in users would have remote access? At our institution, remote access requires a computer account which walk-in users don't have. Therefore they are automatically excluded from remote access. Perhaps it's more of a Public Library thing to allow remote access to walk-in users?

    Trisha Davis: To be honest, the definition of " walk-in user" completely defeats the need for remote access. If the user is on the library premises, they would not need remote access! However, just because they can walk into a library and have access on site in no way guarantees they can access the same content from home, even for public libraries. So, some licensors feel the need to restate the obvious.

  5. Can you ever "interpret" perpetual license if nothing is stated? It seems like you would always want it to be explict. What do you think?

    Trisha Davis: There normally are other terms in the license that refer to loss of access then the contract expires or the subscription ends. So yes, you want explicit perpetual access rights states in the license.

  6. Should we look for some stipulation in the perpetual access note about what happens to access if the licensor goes out of business?

    Trisha Davis: Sure, you can look for it, and you should prefer a license that speaks to that issue. But once a licensor goes out of business, you get what you get unless you are willing to bring suit against an entity that may have no money to repay you! For a high priced product, I would look for language assuring the continuation of the license should the product be sold to another entity.

  7. I would really be interested in hearing your thoughts about confidentiality of license and how Trisha deals with vendors who want to put that explicitly in license. Thanks.

    Trisha Davis: The Ohio State University is very pleased that our state law does not allow confidentiality of license terms. So we cannot sign a license with any such terms. Normally those are removed or we will not purchase the product.

  8. For a license requirement for an individual journal subscription, what does the institution need to do? Does the institution need to go to the website and print out the license agreement and sign for each title?

    Trisha Davis: Even if you are only acquiring access to a single journal from a publisher, I would negotiate the license in a manner that would meet your future needs. Then, should you wish to acquire more content from that publisher, you could refer to the existing fully executed license, and avoid having to process the license again for each successive product. Does that make sense?

  9. What states are allowing their public institutions to participate in SERU instead of licenses?

    Todd Carpenter (NISO): A registry of participating libraries, publishsers and consortia is available at: http://www.niso.org/workrooms/seru/registry/

  10. If you have a SERU agreement, do you input those data in your ERMS, or how do you signify you do not have a license but you do have an agreement?

    Clint Chamberlain: We've encountered that problem with our ERM. Long-term, we're going to ask the ERM vendor to add SERU as an option to the drop-down menu that currently allows one to select which type of license applies (e.g., click-through, negotiated, etc.). In the short term, however, I plan to put in a note stating that SERU terms apply, as well as a note containing any business terms (e.g., number of concurrent users, subscription term) included in the purchase order and then will map the relevant ERMI terms that were talked about during the webinar so that anyone who looks at the record will not need to be familiar with SERU to know that ILL is allowed, fair use is allowed, etc.  

  11. Are there many corporate libraries using SERU instead of licenses? Do publishers look differently on accepting SERU with corporate entities than with non-profits?

    Clint Chamberlain: So far, the majority of libraries on the Registry are academic, with a smattering of health science and other research institutions plus one or two public libraries, but with no corporate libraries listed to date. That doesn't mean they're not using SERU, of course, but so far none have signed the Registry. I can’t say for sure whether publishers look differently on accepting SERU with corporate entities.

  12. I’d like a clearer understanding of “consideration”. Here’s the case study from a library I have worked with:
     
    A vendor makes an offer to a library. The library is given training on how to use the resource and a deadline by which to indicate if they are not interested. The library decides not to subscribe but misses the deadline given by the vendor. Does the training count as “consideration”? Does not responding by a particular date count as “consideration”?
     
    I don’t have a copy of the specific offer. Thanks in advance for your help.

    Trisha Davis: You’d need a lawyer to analyze the situation. Even I have many questions: Is there a signed contract in existence? Was training included in the package deal for which the library is obligated to pay?

    Neither training nor missing a deadline count as “consideration” but both issues you described could have consequences based on any contract in place. That’s why you’d need legal counsel to determine your obligation.

  13. Could archiving rights be referring to local loading?

    Trisha Davis: Not usually. When local loading is done in lieu of access from the publisher/distributor's site the license spells out the details of how the data is distributed, how frequently, how currently, if it is exactly the same content as the online, etc. It's a much more complex license to negotiate.

  14. As a non-lawyer who reads the licenses for the library, I'm interested in knowing more about non-ERMI elements of licenses, such as indemnification, confidentiality, force majeure, etc. What kinds of things might appear in these clauses that I need to pay attention to?

    Trisha Davis: Hi Roberta - you should get a copy of Becky Albitz' book: Licensing and Managing Electronic Resources (Oxford : Chandos Publishing, 2008; ISBN-13: 978-1843344322) http://www.amazon.com/Licensing-Electronic-Resources-Information-Professional/dp/1843344327.

  15. Does SERU have a logo -- a goodhouskeeping seal of approval--that publishers can put on their websites?

    Clint Chamberlain: Not yet, though we’re working on it!

    Karen Wetzel (NISO): The NISO SERU Standing Committee is currently working with a designer to create a logo for this use -- for publishers to mark their sites and/or products available with SERU, and for libraries who are willing to purchase e-resources with SERU.

  16. Why would the library not want to use SERU for higher price subscriptions if the publisher is comfortable with it?

    Clint Chamberlain: I think this may be a situation where it may be the library's parent institution and/or legal counsel who may feel more comfortable with a license in some situations, especially for products with a higher cost. For example, at my own institution we are required by the state to include an addendum for any purchase greater than $10,000, so even if a publisher were to offer to use SERU for a product that cost more than $10k, we'd still be required to add the state’s terms to the purchase – in which case a license might be the better route to choose after all.

  17. If SERU is employed, what if a consortial agent sits in the middle between the subscriber and the vendor and the purchase order containing the licensing addenda is addressed to the consortium and not to the vendor?

    Clint Chamberlain: Several consortia have endorsed SERU and are listed in the SERU Registry (http://www.niso.org/workrooms/seru/registry/). In these cases, use of SERU in a purchase arrangement will apply to all of the consortial members who take part in that consortial purchase, rather than just to a single library as would be the case in a non-consortial purchase involving SERU.

  18. SERU is focused around the "subscription" business model. Does the committee intend for it to be extended to one-time purchases or are there plans for a SERU for books?

    Clint Chamberlain: At the moment I don’t know of any plans to adapt SERU specifically for one-time purchases or e-books. That said, some publishers (e.g., Springer) have offered to use SERU for online reference works as well as for other online publications, including books and book series.

  19. Is there a site that maps the SERU framework to the ERMI fields?

    Clint Chamberlain: Not yet, but given the interest expressed it's something that the SERU maintenance group needs to discuss.

  20. Which publishers are thinking about SERU? Any of the big ones?

    Clint Chamberlain: A complete list of all the publishers and content providers who currently endorse SERU is available at the SERU Registry website: http://www.niso.org/workrooms/seru/registry/. Additions are made to the Registry regularly, so continue to visit here to see who is using SERU.

  21. Can you talk a bit more about indemnification and how libraries are dealing with it?

    Trisha Davis & Clint Chamberlain: This is a truly legal issue that is dependent entirely on the policies (politics) of the institution. Ohio State University never accepts an indemnity clause; at the University of Texas at Austin, we try to strike such language or, if that's not successful, insert a phrase such as, "to the extent authorized by the constitution and laws of the State of Texas" at an appropriate point in the indemnity clause. So far we haven't had problems with any publishers accepting that insertion.

  22. Perhaps NISO could reach our to the P-D-R group of most of the large pharmaceutical companies to promote SERU and perhaps work out a version that would work well with this community: http://www.p-d-r.com

    Clint Chamberlain: Thanks for the suggestion! The SERU maintenance group will certainly take that suggestion to heart.

  23. Trisha-How does OSU manage the CDs that the publishers supply? Not the ones that come with the book, but the CDs with archival material?

    Trisha Davis: Very simply. We send them off to archival storage! We have no plans to retrieve and use them at the moment.