In anticipation of the 3rd edition of my book Licensing Digital Content: A Practical Guide for Librarians being published later this year, I'm sharing updates and licensing information as I progress through the writing and editing processes.
This week I'm setting out commonly asked questions about licensing digital content. The answers to these questions will help librarians and others who negotiate licenses for the use of digital content, such as electronic periodicals and databases. I would love to hear your questions too!
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Questions and Answers on Licensing Digital Content
What would a “perfect” digital license contain?
There's no such thing as a perfect license. Each agreement must reflect the needs and requirements of the two parties involved. Each situation is unique. The “perfect” digital license would be one that sets out terms and conditions that satisfy both the library and content owner.
Are a license and an assignment the same thing?
No. A license is mere permission to use content according to specific terms and conditions. An assignment is an outright purchase of the rights to that content.
Must all licenses be in writing?
This isn't always necessary, but it is a good idea, since a written license summarizes your negotiations in a single document setting out the terms and conditions of use of content. Be mindful that U.S. state law and Canadian provincial law have different requirements regarding when a legal agreement must be in writing.
What if the content owner doesn't provide you with a written license?
Ask the content owner if they have a license with terms and conditions of use set out on their website. If a license isn't available, ask if the content owner would set out the terms and conditions of use in a letter to you as a record of the nature of the license. Alternatively, your library could develop and draft a standard license agreement that you could send to the content owner in this and other situations.
What if a license isn't negotiable?
Other than click-through, webwrap, or shrinkwrap agreements, most licenses are subject to some discussion and negotiation. If you're faced with a license that doesn't meet your needs and doesn't appear to be negotiable, ask the content owner about the portions of the license that you would like amended, and try to open discussions and negotiations to ensure that the final license meets your needs.
Can you cross out parts of a license that you don't agree with?
You may “cross out” portions of the license, but both parties should initial those crossed-out portions or any added "penciled-in" portions when they sign the agreement.
Our legal department won't approve the content owner’s proposed license, but the content owner won't change the offending sections. What should we do?
This is a judgment call. Are you allowed to sign a license your legal department doesn't agree with? Is it in your best interests to do so? Carefully examine the reasons why your legal department is opposed to the license. Why is the content owner so inflexible about these offending sections? Will these sections be harmful to your library, or to the use of the licensed content? What is the liability of your library for including or omitting certain terms and conditions? Is it possible to obtain the same or similar content from another source?
More in-depth answers and further licensing questions are set out on Copyrightlaws.com in the post, Questions on Licensing Digital Content.