SEAALL: Licensing and Copyright

SEAALL Session A1
Licensing and Copyright: Negotiating Licenses Rocky Balboa Style
Friday April 13, 2007

Speakers: Jim Heller, Director of the Law Library & Professor of Law, College of William & Mary
and Claire Engel, Director of Library and Records Services, Troutman Sanders LLP

Notes:

Jim Heller:
Access - ownership

Copyright - federal issue

• but licenses are contracts, thus governed by state laws

UCITA - attempt to create uniform computer/information law

• biased toward publishers/providers
• MD and VA are the only states that passed it

When you own your own amusement park, you can do what you want

• When you visit Disney, you must follow their rules
• Access rules for resources we don't own can prohibit fair use, copy making, ILL

3 documents handed out-

• Special Library Association's Principles for Licensing Electronic Resources, 1997
• National Library of Medicine's Policy on Acquiring Copyrighted Material in Electronic Format
• Licensingmodels.com's academic: single institution sample (UK-based site, but models for public and private libraries)
  

Some courts hold click-through licenses as binding; some don't

Salespeople will say anything - take advantage of this and get them to go to bat for what you want

Avoid "licensor can change at anytime" clauses, or specify that changes must be sent in print form (because if it's an email from a vendor, it could be deleted before we read it)

Rights of users

Commercial use: this usually means reselling or repackaging content rather than using it at a for-profit institution

Hold harmless clause - in case publisher is infringing

Claire Engel:
All databases go into the library budget, even if a marketing database for the advertising department

Time issue in negotiating due to lawyer demands for products

Ground rules for dealing with licenses:

• everything is negotiable
• what can't you live without?
• prioritize
• be prepared to walk [sounds like buying a car!]

Engel starts with dollars - no point negotiating something that's definitely out of budget

Some questions to ask:

• How do summer associates fit in? Contractors?
• What happens if a practice group leaves the firm (or if there is a merger?)

Watch for clauses about availability of resources

Get a clause that articles mentioning the firm can be posted on the intranet

Most contracts want to turn librarians into copyright Nazis

Acts of god/force majeure - watch out: these used to be one line, but now include everything and the kitchen sink

Tips:

• check list
• keep files of good clauses
• good relationship with sales reps
• remember licenses are for limited $$ and limited time - prioritize which to negotiate

Thoughts:
With the name Rocky Balboa in the subtitle, I expected this session to focus on going head-to-head with vendor reps in negotiating licenses. It was more going over various contract clauses, what to watch out for, and how to prioritize, and that was fine. In fact, I was surprised by how interesting I found it all.

Reviewing and negotiating licenses isn't part of my job description, but if it ever should be, I now have more confidence that it's something I could both handle with some competence and enjoy to some extent.