For the most part, subscriptions to journal packages and full text databases are what are considered "standard licenses." But even with these, there may be differences that you should look out for.
What follows are sample clauses for each section of a license that librarians should be concerned with.
Attribution: 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:
Example, depending on whether the agreement is for the entire University or for certain members:
The correct way to identify a specific college:
CUNY approved language:
"[Vendor] shall be complaint with all federal and state laws and requirements in the provision of services under this Agreement, including but not limited to the provision for equally effective and substantially equivalent ease of use for persons with disabilities, as required by the Americans with Disabilities Act (ADA). Section 508 of the Rehabilitation Act and Web Content Accessibility Guidelines (WCAG) 2.0, level AA shall be used to evaluate minimum compliance with the ADA. [Vendor] shall indemnify, defend, and hold the University, the State of New York, the City of New York, the Dormitory Authority of the State of New York, and their respective Trustees, Employees, agents, and servants harmless for any fines, penalties, expenses, or awards related to any claims related to failure to maintain ADA compliance, including attorneys’ fees, and requests for accommodations."
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.
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 ( ).
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.
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/
A sample clause:
"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."
Librarians should make sure perpetual access rights are in the license (when applicable--for individual subscriptions and subscription packages). If there are accompanying access fees, these should be laid out in the fee schedule:
Sample clause:
"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. Continuing archival access and use is subject to the terms and conditions of the expired License."
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:
Sample clause:
"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.
Licensor should try to provide COUNTER-compliant statistics and should not use any language that limits internal or external use of usage data.
Sample clause:
"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."
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.
Sample clause:
"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.”
Also, references to the provision of data or statistics on ILL use, references to type of library, and references to geographic limitations to ILL should be removed.
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.
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."
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."
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.”
Sample clause:
“Print and download a reasonable portion of the Subscribed Products.”