Licensing Electronic Resources in Academic Libraries: A Practical Handbook

By Corey S. Halaychik and Blake Reagan

Licensing Electronic Resources in Academic Libraries: A Practical Handbook provides librarians charged with reviewing, negotiating, and processing licenses with fundamental information that will ensure they not only understand the contents of a license, but are also able to successfully complete the licensing life cycle from start to finish. The contents of the monograph includes basic concepts, real word examples, and tips for negotiation.

• Ideal resource for both new and practicing librarians who are responsible for licensing information resources
• Written from both a librarian’s and procurement officer’s point-of-view
• Includes examples directly related to libraries
• Provides a step-by-step explanation of contract language and suggestions on how to best negotiate impasses and negotiation tips

• Language: English
• Publisher: Elsevier Science
• Release date: Mar 2, 2018
• ISBN: 9780081021088

Corey S. Halaychik

Corey S. Halaychik is an award winning librarian who has held leadership positions in the hospitality, map publishing, and library industries. He has worked across many library departments, including reference, access services, and electronic resource units in both public and academic settings where his work and research have focused on improving efficiency, teamwork, and leadership skill development. He previously served as Chair of the Department of Library Services at Three Rivers College in Poplar Bluff, Missouri, and his current role is Assistant Professor and Head, Acquisitions and Continuing Resources for The University of Tennessee Knoxville. Corey is also co-founder and co-director of The Collective (thelibrarycollective.org), a professional library gathering founded in 2015 and dedicated to reinventing the library conference landscape. He holds an MLIS from Florida State University and a MS in Leadership from Grand Canyon University. He’s a Florida native but currently resides in Tennessee with his faithful sidekick, Jackson the Wonder Hound.

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Chapter 1

Basics of Library Licenses

Abstract

This chapter explores the basics of library licenses. It starts by describing the nature of licenses and the environment in which most libraries process licenses (the procurement process). It then explains the various stakeholders’ perspectives. The chapter discusses master agreements and provides an example. The chapter closes with an example library license with comments/changes.

Keywords

Library contracts; library licenses; master agreements; library procurement; process improvement

Introduction

What is a License?

While the analogy is not an exact parallel,¹ perhaps it is easiest to think of a license like an apartment lease.² In an apartment lease, the property owner (landlord or licensor) gives the tenant (lessee) rights to use the property. The landlord and lessee agree in a contract (lease) the terms under which the lessee may occupy the landlord’s premises. When it comes to intellectual property related to our purposes in this book, under a license, the licensor (owner of the intellectual property³) grants to the licensee a nonexclusive right to use the licensor’s property in certain ways, and prohibits certain uses. In exchange, the licensee will pay the licensor for the rights to use licensor’s property.

In a license, the licensor retains ownership to their property.⁴ Often, the licensor might be licensing content that is owned by third-parties. In that case, the third-parties have licensed content to the licensor, and the licensor has the right to sell your organization a license.

Licenses are contracts. Contracts are binding agreements (a promise that the law will enforce⁵), which are agreed upon by two or more parties. The general functions of a contract are to:

1. Allocate risk from one party to another;

2. Set forth how the parties will behave during routine interactions;

3. Set forth the rights and obligations of each party; and

4. Describe the parties’ remedies if things go wrong.

It might be useful to think of contracts as private law, a set of laws to which the parties voluntarily agree.

Why Do Licenses Exist?

Licensors use licenses to help ensure they can protect their property, or protect the rights of others who own the property if the licensor is sublicensing the property. Licensors use contracts to help create certainty and reduce risk as it relates to the licensed property. Licensors also use licenses to spell-out how licensees may use the licensed product.

Without a license, (excluding whatever rights one might have under the provisions of U.S. copyright law, including Fair Use), no one could use the owner’s product. Licenses allow an organization to use the product for the purposes, and at the price, stated in the license.

Why Do Licenses Matter?

Licenses matter because licenses are binding legal documents. Failure to adhere to the terms of a license could result in loss of access, extra costs (in the form of liquidated damages), audits, or lawsuits—or, all of these negative outcomes. Moreover, failure to comply with a license’s terms could result in public-relations issues or other reputational concerns for your organization. Ultimately, licensors do not have to sell your organization a license to the licensor’s products. Of course, licensors must sell their licenses in order to stay in business, but your organization does not have a right to the licensor’s content—unless you have a license agreement with the licensor.

It would be difficult to overstate the importance of understanding every word in your licenses.⁶ While perhaps a rare occurrence, licensors could sue your organization. Moreover, it is possible that third-party content owners could sue your organization, if your organization breaches the license agreement. A more likely scenario is that a license contains language requiring your library to pay for the licensor to audit your library should the licensor’s audit reveal your library breached the license. Alternatively, the license could require your library to pay liquidated damages (a phrase that means a certain, stated amount of money, agreed-upon in the contract) to the licensor if your organization breaches the license agreement. Also, it's possible (though, probably unlikely) that a licensor could sue library staff in their individual capacity, especially if the library is a private-sector entity.⁷

In this chapter, we will discuss a basic overview of the library-license acquisition process, and then discuss common terms that appear in library licenses. We will close this chapter with a sample licensing