The audit sheet gives examples of some of the issues that would diverge from standard licenses. Go to the bottom of this box for a copy of this audit sheet in Word format:
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."
INTERLIBRARY LOAN--N/A
SCHOLARLY SHARING
Some vendors (Sage) allow a user to "lend" a link that must be viewed within a certain time period by the borrower. This is usually a short period of time. In the case of Sage, it is an hour.
COURSEPACKS, PRINT AND ELECTRONIC--N/A
RESERVES--N/A
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.”
COLLEGE WEB SITES--N/A
PRINTING and DOWNLOADING--N/A
Sample clause:
“If the Customer has purchased perpetual rights to the Product(s), ASP will provide the Customer, upon request and when the Product(s) reach completion, the data contained in the Product(s) either on a digital storage medium (for a fee of $500 per Product requested) or through a third-party vendor of archiving services. The Customer that has purchased perpetual rights to the Product(s) may optionally load data onto a local server to be accessed by Authorized Users through the Customer's search and retrieval software. In the case of audio or video, such access must be restricted by DRM and be limited to one (1) simultaneous user."
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.
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.
Sample clause:
The TEACH Act [Section 110(2) of the US Copyright Act] provides for the digital transmission of films for the purpose of distance education in limited circumstances. However, this act DOES NOT apply when a film's distributor limits use with their license. License restrictions limit uses afforded by the TEACH Act.
Or
"Nothing in this License shall in any way exclude, modify, or affect any of licensee's rights under national copyright law"
N/A
In the case of streaming videos, the vendor should supply some type of captioning on the video itself or in some cases, like Films on Demand, a transcript is provided on the side of the video and the spoken text is highlighted in the transcript.
Sample clause:
"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."
COUNTER 4 does have multi-media reports. 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."