Show Us Where You Are! On the toolbar, click on the yellow star, then click on your location!

E-Resource Licensing Overview and How-To for the Non-Lawyer

Using this software Microphone Raising your hand Green  / Red X Laughing / Clapping Stepping out Text chat Audio Full Screen Exiting

Objectives At the end of this workshop you will be able to: Understand general license terms Understand permissions statements Suggest revisions/remedies to unfavorable license language

A little about me MLS, Florida State University, 2000 Instruction and Outreach Coordinator, Mercer University, ’00-’06 Professional Development Librarian, SOLINET/Lyrasis, ’06- present Not a lawyer!

Seen this before?

What can we do with someone else’s work? Most of the activities of librarians and library users is protected by Sections 107 and 108 of United States Code, Title 17. Section 107 is often referred to as the “Fair Use” section.

Section 107. Limitations on exclusive rights: Fair use Reproduction for purposes of criticism, comment, news reporting, teaching scholarship, or research, is not an infringement of copyright. 4 considerations: –Purpose of the use –Nature of work –Amount and Substantiality –Effect of the use

Section 108. Limitations on exclusive rights: Reproduction by libraries and archives Pertinent clauses include: a. 1 copy can be made and the copy can be distributed. d. Library can copy and distribute 1 article or small part of some copyrighted work and no effort is needed to get the copy back, nor does the library need to know anything about the end user’s purpose

The contract effect Any contract/license you sign that forbids rights otherwise protected by copyright law trumps USC-17§107 and USC-17§108.

Meet the Governor Licenses are established to govern the following: Terms/definitions Authorized and non- authorized uses Duties Jurisdiction Legal remedies Modification/cancellation

1. Key definitions Traditionally the first section Definitions provided for all subjective terms, often including: –Dates –Fees –Authorized users –Publisher/Provider/Intermediaries –Products

2. Uses – authorized and not… First, the authorized: Storage Reproduction Sharing Incorporation into other works

Means of distribution 3 typical stances on distribution allow for interlibrary loan: Every way except electronic Electronic only by secure transmission, i.e. ARIEL Any format by any means

Example: NetLibrary 2. Copyrighted Works. a.... Member agrees that any use of eBooks by Member and its Patrons is governed by and will comply with applicable laws, including without limit U.S. copyright laws. Member acknowledges that it and its Patrons have no right to make copies of any eBook, or any portions thereof, except to the extent permitted by applicable copyright laws and neither it nor Patrons have any right to grant any third parties the right to use any eBook (for purposes of this sentence, third parties does not include Patrons).

Example: Project MUSE

2. Uses – authorized and not… Now the not-so-authorized: Use for commercial purposes Alter appearance of product

3. Duties Obligations for both parties spelled out Typically include: –Commitment to privacy –Access and network performance

4. Jurisdiction Jurisdiction is the right and power to interpret and apply the law; also refers to the territorial range of authority or control. Governing clause defines where disputes shall be settled and whose law is applicable.

4. Jurisdiction Avoid UCITA jurisdictions –MD, VA Avoid non-U.S. laws/jurisdictions

Stuck with UCITA? Opt out! Explicit opt-out language in your contract Example from Johns Hopkins University: This Agreement shall be governed by the laws of the state of Maryland. As specifically provided by Maryland Annotated Code, CL, Section , the Parties agree that this Agreement shall not be governed by the Uniform Computer Information Transaction Act (UCITA) as adopted in Maryland under Title 21 of the Commercial Law Article of the Maryland Annotated Code, as amended from time to time. This Agreement shall be governed by the common law of Maryland relating to written agreements, as well as other statutory provisions, other than UCITA, which may apply and shall be interpreted and enforced as if UCITA had never been adopted in Maryland.

5. Legal remedies Indemnity – are you on the hook for someone else’s expenses? Omission – what does something mean when it’s not there?

6. Modification/cancellation Amendments Severability Cancellation

Can we make some changes? Review by legal counsel… Overwrites, strikethroughs, and addendums Both parties must agree

Licenses and collection development Bundling E-metrics Access policy Significant impact on resources

Efforts to simplify: SERU Shared Electronic Resource Understanding Commitment via registration and statement in purchase communications –“In the absence of a separate license agreement, ______ follows the SERU guidelines, as published at the NISO SERU website:

SERU continued Addresses: –Subscription –Authorized Users –Use of materials –Inappropriate use –Confidentiality & Privacy –Online performance and service provision –Archiving and perpetual access

Efforts to Simplify: SERU

Efforts to simplify: Liblicense Attempt to help librarians get a grip Terminology Examples Best practice models

Licensing variations Copyleft – Creative Commons –

Thank You for Attending! Questions? Professional Development Russell Palmer