There are many different business models for Ebooks: subscription, purchase (package, individual titles, multi-user, single user), Patron or Demand Driven Accounts. These licensing considerations are typically for large subscription packages but understand which model you're dealing with when assessing a license.
Click each link below for a brief description and sample clause. For a full audit sheet, the document is attached on the bottom of this box. Use this sheet to assess the license. This is a word document so you can cut and paste parts that you need in communicating with a vendor. All sample clauses used in this guide were adapted from The Florida Virtual Campus Guidelines for E-Resource License Agreements, the ARL Model License, The Model License Comparison Table, and several licenses negotiated by the Office of General Counsel, CUNY.
The correct way to identify CUNY in agreements is:
The City University of New York (CUNY), with its principal office at 205 East 42d Street, New York, New York 10017.
So, for example, depending on whether the agreement is for the entire University or for certain members:
The City University of New York (CUNY), with its principal office at 205 East 42d Street, New York, New York 10017 (The Consortium) on behalf of the Members of the Consortium.
The City University of New York (CUNY), with its principal office at 205 East 42d Street, New York, New York 10017 as representative of several University campus libraries (“the Sites”).
The correct way to identify a specific college:
The City University of New York on behalf of Baruch College (the Licensee)
(Librarians should look at the authentication clause--OGC will not necessarily know whether a resource you're licensing should be accessed via IP or whether you'd accept unique user names and passwords as in some non-standard licenses)
In Standard licenses at CUNY, authentication is typically achieved by IP recognition.
Sample clause:
Authorized users shall be identified and authenticated by the use of Internet Protocol (IP) addresses provided by licensee to licensor.
or
Access to the licensed content shall be authenticated by the use of Internet Protocol (IP) addresses indicated by the Subscriber on Schedule ( ).
The Glossary of Terms explains the terms that are going to be used throughout the license.
What Librarians really need to look at in this section is the definition of "Authorized Users." Below is a standard definition for CUNY authorized users. Note that the Council of Chiefs has recently proposed that "retired faculty" be added to out licenses. So, we should ask for that from vendors or as in the case of Elsevier, we may even get a broader definition, which includes "retirees,"--not specifying faculty. Definitions of authorized users should include "walk-in" users. Be aware that occasionally, a vendor will not allow all walk-in users; you'll have to negotiate this out of the license unless your library is able to (and wants to) distinguish walk-ins from other users.
"Authorized users include those persons affiliated with Licensee as students, faculty (including retired faculty), staff, and independent contractors of Licensee and its participating institutions, regardless of the physical location of such persons, as well as walk-in users."
For clarity, specific mention of interlibrary loan, coursepacks, reserves, course management systems and college websites, scholarly sharing, and downloading, etc. is preferred. If any are not specifically mentioned elsewhere in the agreement, the inclusion of a clause affirming rights according to U.S. Copyright Law assumes retention of these rights, if the library determines that the statutory requirements for fair use have been met.
INTERLIBRARY LOAN
Many Ebook vendors do not allow ILL or only allow ILL on the chapter level. This is something that Librarians need to be pushing back on more often; however, you have to decide whether you can live with no interlibrary allowances if the vendor is firm on this issue. A good standard clause for either a chapter or an entire book is:
"Licensee may supply through interlibrary loan a copy of an individual document being part of the Licensed Materials by post, fax, or secure electronic transmission for the purposes of non-commercial use. Specifically, copies may be made in compliance with Section 108 of the U. S. Copyright Act."
SCHOLARLY SHARING
Sample clause:
Transmit single journal articles and book chapters from the Subscribed Products to other authorized users and to third party colleagues for their scholarly or research use.
COURSEPACKS, PRINT AND ELECTRONIC
Sample clause:
"Licensee and Authorized Users may use a reasonable portion of the Licensed Materials in the preparation of Course Packs or other educational materials."
RESERVES
Sample clause:
"Licensee and Authorized Users may use a reasonable portion of the Licensed Materials for use in connection with specific courses of instruction offered by Licensee and/or its member institutions."
COURSE MANAGEMENT SYSTEMS
Sample clause:
“The Licensee may incorporate parts of the Licensed Materials in Virtual Learning Environments [Course Management Systems] for the use of Authorized Users in the course of instruction at the Licensee's institution, but not for Commercial Use. Each such item shall carry appropriate acknowledgement of the source, listing title and author of the extract, title and author of the work, and the publisher. Copies of such items shall be deleted by the Licensee when they are no longer used for such purpose.”
PRINTING and DOWNLOADING
Ebooks should allow for printing although some have limits as to pages allowed. Most will allow at the chapter level. Most Ebooks can be downloaded, either at chapter or book level. Some downloading requires additional software. If additional software or instructions are required; the license should state where you can find further information to share with patrons.
Sample clause:
“Print and download a reasonable portion of the Subscribed Products.”
For ebooks, perpetual access rights are extremely variable and are dependent on the particular business model under which you are subscribing/purchasing. When subscribing/ purchasing an ebook, multiple ebooks or ebook packages, make sure you understand your perpetual access rights (where applicable) and that they are clearly spelled out in the license. Also, if there are accompanying access fees at the time of purchase or subscription, or in the future, these should be laid out in the fee schedule:
"Perpetual access to the full text will be provided by the Publisher either by continuing online access via the Publisher's server or by supplying the electronic files to each subscribing Institution in an electronic medium mutually agreed between the parties.”
Librarians should check that the license provides for a copy of the licensed content in the event that the publisher ceases to hold publication rights or ceases to exist. Also, CUNY is a Portico participant. Sample clause:
If the Licensor ceases to hold the publication rights of any of the Licensed Works and is no longer able to provide access, the Licensor shall ensure that continuing access is provided either: by the new publisher of the relevant Licensed Work; or through Portico, CLOCKSS, or a similar third party archive and in such case the Licensor shall provide all relevant details of the Licensee to the the third party in order to enable access to the third party in order to enable access to the third party archive by the Licensee. Such access will be subject to Licensee fulfilling the third party's terms and conditions for access; or by providing the Licensee with an electronic copy of the relevant licensed Works for the purpose of local hosting by the Licensee.
Librarians should make sure that there are no circumstances under which the Licensor can sell or otherwise give user data to third parties without permission from the Licensee. Sample clause:
Licensor shall not, without the prior written consent of Customer, transfer any personal information of any Authorized Users to any non-affiliated third party or use it for any purpose except as is necessary to perform the Services in compliance with applicable laws and regulations, including the Family Educational Rights and Privacy Act ("FERPA").
Occasionally, a License will refer to the Licensor's online privacy policy. This should be reviewed to insure that it provides the same protections.
Licenses should have some statement that insures a vendor will compensate the library for any significant downtime that is the fault of the vendor:
"Licensor shall use reasonable efforts to provide continuous service twenty-four (24) hours a day, seven (7) days a week. Scheduled downtime will be performed at a time to minimize inconvenience to Licensee and its Authorized Users. Licensor shall notify Licensee in a timely manner of all instances of system unavailability that occur outside the Licensor's normal maintenance window and use reasonable efforts to provide advance notice of hardware or software changes that may affect system performance."
The license should also provide contact information for customer and/or technical service and it should include the requirement that the vendor notify licensee of scheduled maintenance.
No license should limit the use of licensed content within the scope of copyright law. If, for example, a clause regarding rights of use reads: "The Publisher agrees to grant to the licensee the non-exclusive and non-transferrable right to give Authorized Users access to the Licensed Materials via a Secure Network for the purposes of research, teaching and private study....it should be expanded to include...and other uses in accordance with U. S. Copyright Law.
Or, the more sweeping "Nothing in this License shall in any way exclude, modify, or affect any of licensee's rights under national copyright law" is acceptable.
Digital Rights Management (DRM) is a systematic approach to copyright protection for digital media. The purpose of DRM is to prevent unauthorized redistribution of digital media and restrict the ways consumers can copy content they've purchased. Some ebooks are free of DRM and others are not.
Only recently have libraries begun to realize the importance of including text and data mining (TDM) in their licenses. A sample clause:
"Authorized Users may use the Licensed Materials to perform and engage in text and/or data mining activities for academic research, scholarship, and other educational purposes, utilize and share the results of text and/or data mining in their scholarly work, and make the results available for use by others, so long as the purpose is not to create a product for use by third parties that would substitute for the Licensed Materials. Licensor will cooperate with Licensee and Authorized Users as reasonably necessary in making the Licensed Materials available in a manner and form most useful to the Authorized User. If Licensee or Authorized Users request the Licensor to deliver or otherwise prepare copies of the Licensed Materials for text and data mining purposes, any fees charged by Licensor shall be solely for preparing and delivering such copies on a time and materials basis."--from the Center for Research Libraries model license at http://liblicense.crl.edu/licensing-information/model-license/
"Licensor shall comply with the Americans with Disabilities Act (ADA), by supporting assistive software or devices such as large-print interfaces, text-to-speech output, refreshable braille displays, voice-activated input, and alternate keyboard or pointer interfaces in a manner consistent with the Web Content Accessibility Guidelines published by the World Wide Web Consortium’s Web Accessibility Initiative. Licensor shall provide Licensee current completed Voluntary Product Accessibility Template (VPAT) to detail compliance with the federal Section 508 standards. In the event that the Licensed Materials are not Accessibility compliant, the Licensee may demand that the Licensor promptly make modifications that will make the Licensed Materials Accessibility compliant; in addition, in such an event, the Licensee shall have right to modify or copy the Licensed Materials in order to make it useable for Authorized Users." -- from the ARL model license at http://www.arl.org/focus-areas/accessibility/2548-model-licensing-accessibility#.VZGCS0ZWcsI
Some Licensees have gone further than this. Temple University includes this statement in their license following language similar to the above: "__________(Company) further agrees to indemnify and hold harmless Customer from any claims arising out of its failure to comply with the requirements of this section."
Licensor should try to provide COUNTER-compliant statistics and should not use any language that limits internal or external use of usage data:
"Licensor shall collect data on usage of the content and process these according to the COUNTER code of practice and according to applicable privacy and data protection laws (the "Usage Data"). The Usage Data will be made available for download by licensee through a secure network."