Digital licensing questions

Information Outlook, June, 2005 by Lesley Ellen Harris

Licensing digital content is increasingly part of the lives of librarians, so we must all take the time to fully understand this licensing. The following questions are often asked by licensors and licensees of digital content. The answers may lead you to a better understanding of your own licensing arrangements.

General Questions

What would a perfect digital license contain?

There is no such thing as one perfect license, because each agreement must reflect the needs and requirements of the involved parties. Although some model licenses have been developed, each situation is unique, and you must ensure that your license meets the particular needs of your library and the content owner with whom you are entering the license. The perfect digital license would be one that sets out terms and conditions that satisfy both the content owner and the user of that content.

Are license and assignment the same thing?

No. A license is mere permission to use content according to specific terms and conditions. An assignment is an outright purchase of the rights to that content. Most digital content is licensed on a nonexclusive basis.

Must all licenses be in writing?

They should be. This is not always necessary, but it is a good idea as a summary of your negotiations and a single document that sets out the terms and conditions of use. A written agreement also helps if you are managing multiple digital licenses entered into by your organization. U.S. state law and Canadian provincial law have different requirements regarding when a legal agreement must be in writing.

What if the content owner does not provide you with a written license?

Ask about terms and conditions. Ask the content owner if there is a license with terms and conditions of use on their Web site or if they could e-mail or otherwise send you a copy of that license. If a license is not available, ask the content owner to set out the terms and conditions of use in a letter to you, so you have a record of the nature of the license.

What if a license is not negotiable?

Except for click-through, Web wrap, or shrink wrap agreements, most licenses are negotiable. If you are faced with a license that does not meet your needs and does not appear to be negotiable, ask the content owner about the portions of the license that you would like amended and try to open a discussion and negotiation to ensure that the final license meets your needs.

Can your warranty and indemnity protect you from a content holder who does not really hold the rights to the content being licensed?

It is always best to enter into any licenses or negotiations with content owners whom you trust. If you are suspicious that the content owner does not own some or all of the rights being licensed, it is best to terminate your negotiations and find and work with a more trustworthy content owner. Although a warranty and indemnity may protect you to some extent, they can be expensive to enforce; and you may find that the content owner does not have the funds to indemnify you against any losses or legal fees resulting from using content that belongs to another party.

Aids in Negotiating Licenses

How can principles endorsed by an association help our organization in negotiating licenses?

You can use licensing principles as a checklist. Similar to model licenses, these principles can be a helpful guide in developing your own policy and in negotiating licenses. Use these principles with caution and as a checklist, rather than following them blindly, and adapt them to meet your particular needs and circumstances.

Is it necessary for our library to have a licensing policy before entering into negotiations?

No. A licensing policy is not part of the negotiations with content owners and, in fact, should be kept confidential. Such a policy functions as an internal guide, ensuring a consistent approach for negotiating all licenses. The policy should be developed through a consensus among various people and based on accumulated experience; it should guide you through the negotiation process, setting goals and bottom lines for your organization.

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Homework Before Negotiations

How does a library determine what rights should be in the license?

Determine how the content will be used, then ensure that the license reflects these uses. It is best to determine these rights in advance to ensure that you are meeting your needs and not simply reacting to the licensing offer from the content owner. Consult various people in your organization, from your lawyer to your acquisitions librarian to your reference librarian. Consult your patrons and researchers when that is possible.

Does the publisher/distributor/aggregator always own the content being licensed?

In some situations, you will license content directly from the owner; however, in many situations, you will be licensing from a publisher, distributor, or aggregator who has rights to license content owned by someone else. In any situation, be sure that the licensor actually has the right to license the content to you. It is prudent to include a warranty clause in the license stating that the licensor actually has the right to license that content to you; however, do not rely on this clause. If you have any doubts, look for a different licensor.