1. License, Contract, Memoranda, Oh My! Kevin L. Smith Duke University Libraries Office for Copyright and Scholarly Communications

2. Contract is the umbrella term Simply refers to a promise or set of promises that the law will enforce

3. It is easy to form a contract! Offer Acceptance Consideration – A mutual exchange – each party must get something

4. The name doesn’t matter Many “Memoranda of Understanding” meet the requirements to be an enforceable contract.

5. Preemption Copyright law preempts state laws re. same rights. Except, contracts sill trump copyright – “Private law” agreements The public (state) law is merely framework – Only bind the parties “Freedom of contract” is longstanding principle in US law

6. Licenses Can be a bare permission to exercise a right – Does not transfer the right – The licensor must own the right or be authorized to “sub-license” Many licenses are contracts – i.e. there is a mutual exchange (love or $$$)

7. An Open Access policy Usually is a license to the institution for reproduction and display via a designated system (library IR, e.g.). – May become part of the contractual relationship between institution and faculty. – What is the scope of the license? Does it allow a license to users?

8. Clauses Distribution of rights Limitations or conditions – On both licensor and licensee, maybe “Give backs” – CTAs often license rights back to authors, i.e. Warranties, disclaimers and indemnification – Important to get assurance (warranty) that licensor holds (or still holds) sufficient rights to grant license. What do warranties in a publisher CTAs say?

9. CC example You are free to: – Share — copy and redistribute the material in any medium or format The licensor cannot revoke these freedoms as long as you follow the license terms (i.e., the license is irrevocable) Under the following terms: – Attribution – Non-Commercial – Share Alike No additional restrictions – You (the licensee) may not apply legal terms or technological measures that legally restrict others from doing anything the license permits. No warranties are given (a disclaimer) – The license may not give you all of the permissions necessary for your intended use. For example, other rights such as publicity, privacy, or moral rights may limit how you use the material.

10. A chain of licenses Rights holder  Institution (1 st Licensee) Rights holder  Publisher (license or CTA) Institution to 3rd party (? 2 nd Licensee) – BePress, ProQuest Might be multiple direct licenses from rights holder Licensee(s)  Users – What can others do with the work?

11. As important as it is obvious You cannot give to others what you do not own! – A license out to users cannot exceed the scope of the license from the rights holder – For example, if policy just allows deposit, cannot give CC-BY to users. But prior license can authorize distribution under CC-BY or another CC license. Or simply give 1 st licensee a CC license