Guidelines for Selection of Electronic Publications: Licensing Terms and Conditions
Providers of electronic publications often employ license agreements to control the use of their products. While selectors do not negotiate or approve licenses, they should read and understand them so that they become aware of the licensing constraints and limitations that define the content of the publication purchased and how our patrons can use and access that publication. In addition, selectors will often find the license to be an invaluable source of information about the product which often contains information not found elsewhere in the site. A selector should consider the following factors for any license agreement that the Libraries must sign as well as any click-through or mass-market license or other terms and conditions.
What Is a License?
At its most basic, a license is an agreement to convey rights to use property for a limited period of time to a party that would not otherwise have the right to use the property that the agreement covers. A vendor or publisher will not always refer to this agreement as a "license"; the agreement may also appear under terms such as "Terms and Conditions," "Conditions of Use," or "Terms of Agreement."
Where Can I Find the License?
Publishers often provide a copy of their standard license on the website of the publication or publisher. Selectors may also request a copy from the publisher or other vendor. The "license" can take the form of a formal license agreement that the Libraries must sign to receive access or appear as a list of "Terms and Conditions" or "Conditions of Use" that claims to apply to any access of the publication. A vendor may also provide different licenses for different categories of purchasers (for example, institutional versus individual). Selectors should attach a copy of the license agreement (or if more than one seems appropriate, license agreements) as well as any other terms and conditions to the Electronic Resource Request Form.
What Publications Does the License Cover?
A selector should check the license to ensure that the license satisfactorily describes the publication or bundle of publications that the selector expects to receive. Licenses often describe the titles covered by the license in a definition of the "Subscribed Journals," "Publications," or "Works."
Who Will the Publisher Allow to Access the Publication?
Licenses usually describe who qualifies as an "Authorized User" or "Permitted User." The selector should examine the definition to determine those persons or groups included and those excluded. Some licenses limit access to those affiliated with the institution. Because UMD serves the public, if a license does not include persons physically present in the library within the definition of "authorized user," Acquisitions must renegotiate the provision.
How Will Our Users Access the Publication?
Access provisions in a license determine how and where users may access licensed works. Selectors should check to ensure that the license provides for access through IP addresses and does not require user identification or passwords. Selectors should also examine the number of concurrent users and IP address subnets permitted as well as additional limitations on access such as geographic restrictions. The UMD campus currently includes three class B subnets. Access to class C subnets or a limited number of individual computers will not provide campus-wide access.
What Are the Payment Provisions?
The selector should examine any terms of payment in the license to ensure that the terms reflect the selector's understanding of payment requirements. Selectors should note that not all licenses address payment; this does not mean that payment is not required.
When Will the Subscription End?
License agreements can bind the Libraries beyond the period of the standard one-year subscription. The selector should closely examine the specified duration of the agreement and identify any limits or penalties for cancellation.
Is There a Non-cancellation Clause?
License agreements sometimes contain non-cancellation clauses that require the Libraries to promise to maintain past expenditures for a specified period of time. In exchange, the publisher or vendor may promise to cap price increases for the period of non-cancellation. These clauses can potentially create problems, because they decrease the Libraries' control over the budget. For example, a non-cancellation clause could force the Libraries in the future to decrease expenditures on other resources so that the Libraries can pay for resources protected by the clause. To date, the Libraries have not agreed to any non-cancellation clauses.
What Happens to the Content When the Subscription Ends?
The selector should determine whether the University of Maryland receives permanent rights to the publication and keeps the information for which it has paid in the event of cancellation or purchases only access rights for a defined period of time. If the Libraries do purchase content (instead of only access), the selector should clarify whether the provider guarantees the perpetual availability of purchased content and what happens to that content if the Libraries change providers, agents, or vendors.
Are There Any Restrictions on Use?
The selector should examine any restrictions on the rights of the Libraries to use the publication such as limits on interlibrary loan, course packs, or electronic reserves, or other limitations on fair use for non-commercial educational, instructional or research purchases. A license may also restrict users' viewing, downloading or printing or limit UMD's right to reformat data or provide links to other UMD holdings.
Are the Libraries Responsible for Unauthorized Use?
Some license agreements have provisions that hold the library liable for unauthorized use of the resource by its users. Acquisitions will examine any such provision and renegotiate it, if appropriate.
Governing Law, Venue, Jurisdiction
A license usually specifies the law that will govern if a dispute arises as well as the court or arbitration panel who will decide the dispute. As a Maryland institution, the Libraries cannot sign an agreement that provides for any law, venue, or jurisdiction other than Maryland; Acquisitions will renegotiate any such provision.
Some license agreements may require the Libraries to take financial responsibility for damages that the publisher may suffer (usually referred to as "indemnification and liability"). Acquisitions will renegotiate all such provisions.
Inconsistencies Between License and Website
The contents of the signed license may often prevail over any conflicting language found in the website. The selector should make sure to compare the license's provisions with other information in the site and highlight or note any discrepancies so that they may be addressed in the negotiation of the license agreement.