Key issues to consider when negotiating an e-resource licence
- Applicable law – preferably the national law of where your organisation is located
- Ensure that statutory rights are recognised – licence should include a term like this:
This agreement is without prejudice to any acts which the licensee is permitted to carry out by the terms of the Copyright, Designs and Patents Act 1988 and nothing herein shall be construed as affecting or diminishing such permitted acts in any way whatsoever
- Perpetual access to the licenced materials – check for “on termination of this licence, the publisher shall provide continuing access for authorised users to that part of the licenced materials which was published and paid for within the subscription period”. Nature allows post-cancellation access rights subject to the payment of an annual access fee
- Warranty and indemnities – the licence should contain a clear warranty that the publisher/licensor is the owner of the intellectual property rights in the licenced materials and/or that they have the authority to grant the licence.
- End-users – the library should not incur legal liability for each and every infringement by an authorised user
- Non-cancellation clauses – e.g. no penalty for cancelling print in order to sign up to the electronic version of an information source
- Non-disclosure clauses – if the licence contains a non-disclosure clause, it needs to be clear what information is subject to the obligation of confidence and you need to decide whether this is reasonable. Public authorities need to bear in mind their obligation under the FOIA, and vendors need to recognise that public authorities can’t simply ‘contract out’ of their FOIA obligations
- Termination clause – which sets out the mechanism or circumstances in which the licence terminates
- ‘Reasonable endeavours’ and ‘best endeavours’ clauses – these are ambiguous and should be avoided. The difference: ‘reasonable’ = probably requires the relevant party to take one reasonable course; ‘best’ = probably requires the party to take all reasonable courses they can. If these phrases are used, make sure that the contract expressly spells out a specific set of steps that the person subject to the obligation is required to do as part of using their reasonable or best endeavours to perform the obligation
If 3 months’ notice of cancellation is require for e-resources licences, consider handing in the notice of cancellation with signed contract, to ensure maximum flexibility when the licence agreement is due for renewal.
The British Library carried out an analysis of 100 licences that had been offered to them, and compared them using the following criteria: archiving, printing, downloading and electronic copying, fair dealing, visually impaired, inter-library loan and legal exceptions. It includes the wording used in the contracts, which makes for interesting comparisons!
IFLA’s licensing principles which should prevail in the contractual relationship and written contracts between libraries and information providers.
It’s important for both sides to be clear about what they are trying to achieve and be upfront about what is non-negotiable.
Factors that can make or break a deal
- Applicable law
- Warranties and indemnities
- Remote access
- Access by walk-in users
- Inter-library loan
- Fair use
- Archival access/perpetual rights
- Adequate definition of authorised users
- IP access
- Definition of university/campus as a single site
Bear in mind usage data. Do you get automatic admin rights to this info and in a format you require? If not, put a clause in the contract requiring the vendor to supply you with usage data on a regular basis. This will help you spot patterns including suspiciously high use from one particular user.