Licensing Basics

By the end of this section, you will understand:

  • The role and importance of licensing in electronic resource management.
  • How copyright and contract law form the foundation of licensing agreements.
  • The difference between types of licenses, including end-user and site agreements.
  • The core components of licensing agreements and their impact on library operations.
  • The importance of tools like ERM software and LSPs for managing hundreds of licenses effectively.
  • Best practices for negotiating licensing terms to benefit both libraries and their patrons.
  • Key legal concepts relevant to licensing, as as in personam rights, First Sale Doctrine, and intellectual property.

Introduction

I think it's fair to say that what characterizes electronic resource management the most is licensing. For if something is licensed, then it's most likely e-content or an e-resource, and by definition, it's not owned by a library. This entails that it's a temporary item in the collection, and thus requires special management.

Licensing requires understanding other aspects of electronic resource management, too. An ERM librarian's job duties might be solely focused on the technical aspects of the work, i.e., those things we covered in the prior chapter. However, an ERM librarian whose primary job duty is to participate in the licensing process must have a good grasp of the technical. This is because it is the technical that is licensed. This is why we spent time on the technical aspects before studying licensing.

Before we get into licensing, we should refresh ourselves on the basics of copyright law, since what is being licensed is a fact of copyright. Since licensing involves negotiating, signing, and managing contracts, we should know something about contract law, too, and how the two types of laws are related.

There is a complicated tension between copyright law and contract law. In short, copyright is a temporary right because of its close connection to the concept of the public domain. In the US, copyright was established in the Constitution under Article 1, Section 8, Clause 8, which states:

[The Congress shall have Power ...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The clause in the U.S. Constitution grants copyright holders specific, exclusive rights. This inherently creates a tension between public and private interests. On one hand, these exclusive rights operate much like private property. As such, it allow copyright owners to control the use of their creations and even transfer or sell these rights through contracts, which are in personam by nature (Rub, 2017). On the other hand, these rights are not absolute. They are granted for a "limited time" and with the ultimate aim of serving the public interest by enriching the cultural and intellectual commons.

This dual nature of copyright—its function as a form of private property that can be transacted, and its overarching goal to promote public welfare—adds layers of complexity to its legal treatment. While copyright law grants certain exclusive rights that can be enforced against individuals through in personam legal actions, these rights are also designed to be temporary and ultimately benefit the public. Therefore, copyright exists as both a personal right that can be legally enforced against specific individuals and a mechanism intended to serve broader societal goals.

The term in personam refers to a legal action made against or affecting specific individuals involved in a contract. In copyright and licensing, in personam rights mean the legal claims apply to parties named in the agreement, such as a publisher or library, rather than the general public. For example, when a library licenses electronic resources, the obligations and privileges apply specifically to the library and the publisher.

This distinguishes licensing agreements from general copyright laws, which set broader public rights. Licensing agreements create specific enforceable obligations between the contracting parties, and this reflects the unique conditions that they negotiate.

In short, copyright exists in a unique space where it functions as a basic right, embedded in the earliest part of the US Constitution. It exists as a temporary bulwark against public ownership for the public good; and unlike other basic rights, copyright is transferable, since it is a type of property right.

Copyright is a type of property right. However, other types of rights cannot be treated as property and are non-transferable. These include natural rights (life, liberty, and the pursuit of happiness), civil rights (right to vote, right to a fair trial, protections against discrimination), political rights (right to protest, run for public office), and social rights (right to healthcare, education, and housing).

This all gets more complicated when licensing enters the picture, and this has to do with three things. First, the history of software reflects the history of print, in as much as source code relied on a physical medium, like a floppy disk or magnetic tape, to be distributed just as a book had to be printed to be distributed. Second, the internet, as well as increasing and more accessible bandwidth speeds, enabled software to be distributed as easily as other digital objects. Third, it wasn't originally clear that software, or source code in particular, was copyrightable, but the Copyright Office at the Library of Congress eventually decided that it was. This eligibility became codified in an 1980 amendment to the 1976 Copyright Act. This cemented the ability for software copyright owners to license their source code. Once that code was free of a physical expression, it could evade the First Sale Doctrine. This set the stage for licensing rather than ownership.

See:

Licensing Agreements

It is important to understand how copyright forms the foundation upon which licensing operates. Copyright law provides the framework for the exclusive rights authors and creators have over their works. However, it is through licensing that these rights are transferred, shared, or restricted in specific ways. Licensing is essentially the mechanism that allows copyright holders to control how their works are used by others. This is particularly the case in the context of digital resources where direct ownership is not transferred. Therefore, an understanding of copyright law is crucial for appreciating why licensing is necessary and how it enables libraries to provide access to electronic resources without owning them outright.

Licensing agreements put this framework into action. They offer copyright or intellectual property (patents, trademarks) owners a contractual framework that functions as an agreement among two or more parties. They enable the parties involved to participate, within some range of time in an owner's intellectual property under certain conditions. Librarians enter into licensing agreements of all sorts. Licenses cover bibliographic databases, ILS/ERM software, and of course, e-content.

Entering a licensing agreement for e-content means that libraries do not own that content but only have access for a limited period of time, as defined in the contract. This is unlike print works, which fall under the first-sale doctrine. The existence of a licensing agreement between a library and an intellectual property owner entails lack of ownership of the item (here I define item within the Functional Requirements for Bibliographic Records (FRBR) model).

Licenses

Weir (2016) provides a nice outline of licenses and what they include. According to Weir, there are two general types of licensing agreements:

  • End user agreements: these are generally the kind that people accept when they use some kind of software or some service.
  • Site agreements: these are the agreements librarians get involved in when they negotiate for things like databases. Here, site refers to the organizational entity.

Licenses must include a variety of components. Weir (2016) outlines the parts of a standard license. They include:

  • Introductions: this includes information about the licensee and the licensor, date information, some information about payments and the schedule.
  • Definitions: this section defines the major terms of the contract. Weir includes, as examples, the licensee, the licensor, authorized user, user population, and whether the contract entails a single or multi-user site.
  • Access: This covers topics such as IP authentication and proxy access.
  • Acceptable use: Included here are issues related to downloading, storage, print rights, interlibrary loan (ILL), and preservation.
  • Prohibited use: What people cannot do: download restrictions, etc.
  • Responsibilities: What the licensee's (the library) responsibilities are. Be careful about accepting responsibility for actions that the library would have a difficult time monitoring. Then also, what are the licensor's responsibilities. This might include topics such as 24 hour access.
  • Term and terminations: Details about the terms of the contract and how the contract may be terminated. Be aware that libraries are attached to either municipal, county, or state governments and must adhere to relevant laws.
  • Other provisions

Additionally, licenses generally must include:

  • scope: what rights are being granted and what limitations exist,
  • duration: how long the license will last,
  • territory: where the license applies,
  • fees or royalties: whether the licensee has to pay for the license, and if so, how much,
  • revocation terms: under what circumstances the license can be revoked, and
  • warranties and liabilities: any guarantees provided by either party and limitations on liability.

As an example, the California Digital Library, via the University of California, provides a checklist and a copy of their standard license agreement.

The checklist covers four main sections, additional subsections, and is well worth a read:

  • Content and Access
  • Licensing
  • Business
  • Management

Standardizing Agreements

Like the technologies that we have covered, NISO and its members moved toward forming a document that helps create a common license framework. The result was SERU: A Shared Electronic Resource Understanding. Although all licenses share some basic similarities, as discussed in Weir (2016) above, the details of the hundreds of licenses a large library has to handle can get lost in a sea of variability.

SERU as a NISO recommended practice helps to resolve this. It fosters a common approach to some aspects of the licensing process and in fact can be used as "an alternative to a license agreement" if both a provider and a library agree to use it. Like the standard licensing structure that Weir (2016) outlines, SERU includes parts that describe use, inappropriate use, access, and more but also posits other stipulations, such as confidentiality and privacy.

NASIG Core Competencies

We have addressed the NASIG Core Competencies for Electronic Resources Librarians (NCC) in earlier sections. The NCC is a reminder of the centrality of licensing for the ERM librarian. Section 1.2 states:

Thorough knowledge of electronic resource licensing and the legal framework in which it takes place. Since licenses govern the use of most library electronic resources and have conditions that cannot knowingly be violated, an ER librarian with responsibilities related to licensing must demonstrate familiarity with how and for whom an organization licenses content, as well as the concepts, implications, and contract language pertaining to such issues as archival rights, perpetual access and interlibrary loan. A practical working understanding of issues such as copyright and fair use will allow ER librarians to obtain the least restrictive, most library-friendly licensing terms during publisher/vendor license negotiations.

Even though we have covered NCC in earlier sections, it's a reminder that when we talk about electronic resource management, we talk about a comprehensive list of responsibilities, skills, technologies, and more, and that we should keep this on our radar. Second, Regan (2015) specifically mentions these competencies with respect to the importance of learning more about the licensing process.

Regan (2015) also highlights the importance of advocating. People may be nervous about the idea of having to negotiate a license for an e-product, but in reality, such work is not done outside of a team. And that team will likely include people who work outside of libraries. This makes it important to advocate for the library and the licensing process. That is, the licensing processes should also be framed as an advocacy process.

LIBLICENSE

LIBLICENSE is a resource to assist librarians in crafting, adopting, and managing licenses for electronic resources. The project is aimed at university libraries, but is relevant to other library types, too. The model licenses page provides a link to the main template, but also links to additional model licenses that cover the United States, the United Kingdom, and Canada from a variety of institutional perspectives, including consortial licensing.

The LIBLICENSE model license includes helpful details, such as types of authorized uses and provisions on:

  • course reserves
  • course packs
  • electronic links
  • scholarly sharing
  • scholarly citation
  • text and data mining

It's important to note that anything that is covered in a license is subject to negotiation between the library and the vendor. That does not meant that terms will be accepted between the parties, but if something is unfavorable or not in the best interests of your institution and patrons, then that needs to be discussed by all parties.

These model licenses are invaluable not only from a practicing perspective but also from an educational perspective. The more you review them, the more comfortable you will become working with them. And, as we will learn in the next section, one of the most important parts of the negotiating process is being prepared to negotiate. That entails being familiar with the basic license model.

Managing Licenses

Large libraries have to manage hundreds of licenses to develop collections and provide access to e-content. Electronic resource management software like CORAL, an open source system designed to manage electronic resources, or a Library Service Platform (LSP) with a corresponding ERM module, are essential tools for managing these licenses effectively. However, using these products still requires careful coordination between different library units to streamline workflows.

Departments like circulation, cataloging, acquisitions, and interlibrary loan are all affected by specific clauses in e-content licenses. This means that each unit must adapt its practices to comply with these agreements. For example, interlibrary loan clauses in licenses can determine whether and how digital resources may be shared between libraries. This directly influences the policies and procedures of the ILL department and requires that the ERM librarian work with the ILL department when negotiating a licensing agreement.

Taulbee and Montavon-Green (2022) describe the complex process of migrating from print to e-resources during the early 2000s and transitioning to a new LSP a some years before the pandemic. Their proactive efforts to digitize and catalog their licenses in Alma ultimately improved efficiency of ILL services and the overall management of licenses. This example highlights the positive impact that thoughtful licensing management can have on library operations, and their work is a prime example of proactive troubleshooting.

While ERM software like CORAL reduces manual tracking and potential errors, its implementation also requires thorough staff training. Integrating multiple workflows across departments is complex, but it is crucial for maintaining compliance with licensing clauses and ensuring that the library can meet its patrons' needs effectively.

Effective licensing management not only ensures compliance with legal terms but also enhances resource accessibility for patrons. Taulbee and Montavon-Green (2022) highlight the strategic importance of these ERM tools in the libraries.

Conclusion

In conclusion, licensing is a vital aspect of electronic resource management that builds on the foundations of copyright and contract law. It enables libraries to access digital content without owning it, ensuring resources are available to patrons while negotiating specific rights and responsibilities. By understanding licensing agreements, ERM librarians can better navigate the complexities of intellectual property, ensure compliance with legal standards, and advocate effectively for favorable terms that benefit their institutions and users. A solid grasp of these concepts allows librarians to manage electronic resources efficiently, ensuring continued access and fostering the growth of library collections in the digital age.

  • In Personam: Refers to legal actions or rights that apply to specific individuals or entities involved in a contract. In the context of licensing, it means that obligations or claims are enforceable against the parties named in the agreement.
  • First Sale Doctrine: A legal concept that allows the purchaser of a copyrighted item to resell, lend, or dispose of that specific item without needing permission from the copyright holder. This doctrine does not apply to digital works in the same way it applies to physical items.
  • Copyright Law: The body of law that grants authors and creators exclusive rights to control the use of their creative works for a limited period of time. These rights include reproduction, distribution, and public performance.
  • Licensing Agreement: A legal contract that permits the use of a copyrighted work under specific conditions, such as time, location, and intended usage. Licensing allows rights holders to retain ownership while granting limited rights to the licensee.
  • Public Domain: Refers to works whose copyright has expired or never existed, allowing them to be freely used by the public without permission.
  • Contract Law: The body of law governing agreements between parties. It defines how contracts are formed, executed, and enforced, and it plays a key role in licensing agreements.
  • Exclusive Rights: Rights granted to copyright holders to control how their work is used. This includes rights to reproduce, distribute, and create derivative works.
  • Intellectual Property (IP): A category of property that includes creations of the mind, such as inventions, literary and artistic works, designs, symbols, and names used in commerce.
  • End User Agreement: A type of licensing contract often used in software, which the user must agree to before using the software or service.
  • Site Agreement: A licensing agreement that allows a specific organization, like a library, to access and use resources across multiple users or locations.

Readings / References

North American Serials Interest Group. (2013). NASIG core competencies for electronic resources librarians. https://nasig.org/Competencies-Eresources

Regan, S. (2015). Lassoing the Licensing Beast: How Electronic Resources Librarians Can Build Competency and Advocate for Wrangling Electronic Content Licensing. The Serials Librarian, 68(1–4), 318–324. https://doi.org/10.1080/0361526X.2015.1026225

SERU: A Shared Electronic Resource Understanding, NISO, http://www.niso.org/publications/rp/RP-7-2012_SERU.pdf

Additional References

Rub, G. A. (2017). Copyright survives: Rethinking the copyright-contract conflict (SSRN Scholarly Paper No. 2926253). https://papers.ssrn.com/abstract=2926253

Taulbee, C., & Montavon-Green, J. (2022). Using license terms to streamline interlibrary loan and electronic resources communication. Journal of Library Resource Sharing, 31(1–5), 59–67. https://doi.org/10.1080/26915979.2023.2200223

Weir, R. O. (2012). Licensing Electronic Resources and Contract Negotiation. In R. O. Weir (Ed.), Managing electronic resources: a LITA guide. Chicago: ALA TechSource, an imprint of the American Library Association.