This presentation covers the steps and best practices for creating a license template for your institution, including creating standard language that you can use in negotiation and a review of model licenses we have in the field. I also highlight new license clauses that we’re seeing in agreements and approaches for negotiating them, as well as emerging areas of interest and concern, especially with regards to new formats or acquisition models that require new language that has not yet been standardized. I also share updates about popular standard model licenses.

1. STREAMLINE YOUR NEGOTIATION:
CREATING & UPDATING A LICENSE
TEMPLATE FOR YOUR INSTITUTION
LIANE TAYLOR, 10 APRIL 2014
LTAYLOR@TXSTATE.EDU

2. ME:
• ~9 years exp
• Trial by fire
• CIP Adv. Licensing, 2011
WHERE I WORK:
• State university
• ~29k FTE
• Emerging research
• Flagship

3. I. Creating or Updating License Guidelines
without Reinventing the Wheel
II.Model Licenses: Wherefore & Whither
III.The New Normal
IV.Working Together & Moving Forward
GOALS

4. • Stop hunting for that wording you used once!
• Consistent verbiage
• Share with colleagues
• Use as checklist

5. The wheel has been
invented: don’t start
from scratch!

6. EASY AS 1-2-3…
1.First consider how you work, who needs access & purpose:
• Does it need to be shared?
• How do you want to use it – checklist? easily copy/paste?
• Consider ease of updating, keyword searching, browsing
2.Consider format options that could meet identified needs
• Spreadsheet
• PPT
• ERM record (Deberah England, Wright State, NASIG 2012)
• Word doc with headings? Google doc?
• Simplenote? Evernote?
• Wiki?
• Basic webpage (Google site)?
• Access database?
• Store in Dropbox? Sharepoint? Google?

7. Ex. Always; As needed; Pending
3. Download Guidelines template at:
http://tinyurl.com/comparelicenses

8. Example: Authorized Users

9. EASY AS 1-2-3…4-5-6.
4. Convert template to your choice of format.
5. Begin filling it in with known (or discover) institution-specific
wording, needs, etc.
• Does your IT division have language reqs. already but no
one told you?
• Are there state laws?
6. Peruse model licenses using Model License Comparison Table
site (to be discussed)…

10. MODEL LICENSES
LIBLICENSE (last rev. 2008) now at CRL
• Updates began in Fall 2013, Mellon support
• *NEW DRAFT OUT FOR REVIEW IN mid-2014*
• Software to assist in building agreements, late ’14
• SEE: http://www.crl.edu/news/10459
NERL (last rev. 11/2012)
Licensing Models (last rev. 10/2009)
California Digital Library (last rev. 2011)
Florida Virtual Campus (last rev. 2013)
• Set of guidelines w/sample clauses

11. http://tinyurl.com/comparelicenses

14. WHEN EXCEPTIONS BECOME THE RULE

15. NEW USES/
PERMISSIONS
• Data/Text Mining
• 3rd Party Usage
Statistic Collection
• Commercialization
Offices/Incubators
• Cloud
Hosting/Software
• Repositories/Author’s
Rights
• Discovery Service
Participation
• Mobile
Devices/Downloading
NEW FORMATS/
ACCESS/ACQ
MODELS
• E-Books – ILL/E-
Reserve Clauses,
etc.
• Streaming Video
(3rd party & self-
hosting)
• Image Databases
• Data Sets
• Auto-renewal
• Perpetual Access &
Completeness of
Content
• Fair Use /
Reasonable Use
• E-Reserves
• Increased use of
EULAs/click-thru
agreements
• More attention to
ADA – lawsuits,
requirements
UNSOLVED PROBLEMS

16. WE NEED [NEW, REVISED] STANDARD
LANGUAGE FOR…

17. TEXT AND DATA MINING (TDM)
BACKGROUND
• Eefke Smit, International Association of STM Publishers
Content Mining: A Short Introduction to Practices and Policies, 2011
http://www.stm-assoc.org/futurelab-webinars/
• ARL – SPARC, “Developments in Publishers’ Text and Data Mining
(TDM) Policy”, 2014
http://www.sparc.arl.org/resource/developments-publishers’-text-
and-data-mining-tdm-policy
MANY ARTICLES -> COMPUTERS! -> ANALYSIS, ORGANIZATION

18. TDM: STANDARD LANGUAGE?
Text and Data Mining: STM Statement & Sample Licence (with
background info)
http://www.stm-assoc.org/text-and-data-mining-stm-statement-
sample-licence/
Includes: Sample license for Text and Data Mining of subscribed
content
--
Ann Okerson has said the new LIBLICENSE model license will
include TDM language (Draft, mid-2014)

19. TDM: ELSEVIER’S NEW POLICY
“For academic customers, text- and data-mining rights for non-
commercial purposes will be included in all new ScienceDirect
subscription agreements and upon renewal for existing customers.
Librarians interested in adding the TDM clause to their existing
agreement prior to renewal are able to request a simple contract
amendment via their Elsevier Account Manager.”
--
“Elsevier updates text-mining policy to improve access for
researchers”, Elsevier Connect, Chris Shillum, 31 January 2014,
http://www.elsevier.com/connect/elsevier-updates-text-mining-policy-
to-improve-access-for-researchers

20. Developments in Publishers’ Text and Data Mining (TDM) Policy
http://www.sparc.arl.org/resource/developments-publishers’-text-
and-data-mining-tdm-policy
• If multi-institutional research team, each institution needs to have
TDM clause in license
• Requires the use of ScienceDirect API, no other TDM tech
• Only TEXT, not IMAGE mining
• Must use non-commercial license when publishing
RESPONSE TO ELSEVIER

21. ISSUES:
• Researchers find it impractical to negotiate multiple bilateral
agreements with subscription-based publishers in order to get
authorisation to TDM subscribed content.
• Subscription-based publishers find it impractical to negotiate
multiple bilateral agreements with researchers and institutions in
order to authorise TDM of subscribed content.
CROSSREF PROSPECT/TDM SOLUTION:
• Publishers can register click-though TDM terms and conditions
designed for researchers who already have legitimate access to
the content.
• Researchers can review, and accept/reject those T&Cs.
• The click-through service will then provide researchers with a
secret “Client API Token” which the researcher can use with their
TDM tools when requesting the full text using the CrossRef
Metadata API described above.
Excerpted from http://prospectsupport.labs.crossref.org/

22. COMMERCIALIZATION CENTERS/ INCUBATORS
• Commercial goals
• Research teams/startups May be part faculty/part external hires
• May be in offices with your IP RANGE.
• Often in areas like chemistry, engineering (applied research)
• Great Summary: Ye Li’s (U Mich) presentation in the webinar
How are library services evolving to support applied research
and discipline-specific researchers? (Bright Talk/Elsevier , 13 March 2014)
• Ye’s presentation starts at slide 33, time 28m:19s

23. From: “Pricing options for academia and commercial
companies”, University of Applied Sciences, Muenster
Germany 2009

24. ACCESSIBILTY COMPLIANCE
To what extent are library databases required to be compliant
with federal, state, school system, or institutional policies?
• Section 508 of the Rehabilitation Act, amended in 1998,
sets accessibility standards for electronic & information
resources; applicable to federal agencies; Subpart B,
Section 1194.22 relates to web-based information
• Higher Education Litigation Timeline, California State
University-San Marcos
http://www.csusm.edu/accessibility/policies/lawsuits.html
• UC Berkeley/DRA, 2011
• Penn State/NFB, 2012
• ER&L 2014, “Working Toward Greater Accessibility:
Navigating Compliance Requirements in E-Resource
Acquisitions” Erin Finnerty (Temple); Laura DeLancey
(Western KY); John Vinke (Purdue University-Calumet)

25. LANGUAGE -> OBLIGATIONS
CDL/LIBLICENSE:
• Licensor shall make reasonable efforts to comply with the
Americans with Disabilities Act (ADA) requirements, Section
508 of the Rehabilitation Act Amendments, and provide
Licensee current completed Voluntary Product Accessibility
Template (VPAT)
NERL :
• Compliance with Americans with Disabilities Act. Licensor
shall comply with the Americans with Disabilities Act (ADA),
by supporting assistive software or devices such as large
print interfaces, 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, which
may be found at http://www.w3.org/WAI/GL/#Publications.

27. UT-AUSTIN, ADAPTED LANGUAGE
Accessibility by Individuals with Disabilities. Licensor
represents and warrants that the [content, product] comply
with the [state law, W3C, 508]. To the extent Licensor
becomes aware that the [content, product], or any portion
thereof, do not satisfy the [above], then Licensor represents
and warrants that it will, at no cost to Licensee, either (1)
perform all necessary remediation to make the [content,
product] satisfy the [requirements] or (2) replace the
[product] with new [product] that satisfy the [requirements].
In the event that Licensor fails or is unable to do so, then the
Licensee may terminate this Agreement and Licensor will
refund to the Licensee all amounts the Licensee has paid
under this Agreement within thirty (30) days after the
termination date.

28. QUESTIONS REMAIN
• Do for all?
• Testing? (HiSoftware Compliance Sheriff; JAWS audit)
• Keep track of non-compliance?
• Keep track of if vendor is improving?
• How can we get all primary library vendors to have VPATS?

30. EX: NON-INSTITUTIONAL USE
WHAT THE HECK?
Non-institutional use
(including by faculty, staff,
affiliated researchers and
independent contractors),
including those located at
different locations, but
within Licensee’s company
or related or affiliated
companies, shall not be
considered Authorized
Users.
SOLUTION(ISH)
Use is limited to
educational,
scientific, and
research purposes
for Licensee’s
institution. All
other uses are
prohibited.

31. DATA SETS – NOT ON CD
PROBLEM: Customer agrees upon termination, expiration, or
default of the Agreement to cease and have all Users cease
all further use of the Product; to destroy all printed or
electronic copies of the Product; either to return to the
Company or destroy the original and any copies of
documentation provided; and to certify to the Company that
such has been done; and to pay the Company all monies due
and owing
ADD DISCLAIMER: Company understands that the ability to
destroy existing copies is limited for students and
researchers that have left the Customer. As such Customer
will simply utilize its best efforts to destroy existing copies.

32. IMAGES, PROMOTIONAL USE
When license e-resource
w/images, do we need
to specify that images
can be used on websites
& in promotional
materials, as well as for
educational use/class
presentations?
Authorized Users
(NOTE: no walk-ins)
can use images from
Licensed Materials on
university websites, in
emails, and within
news publications to
promote events,
services, and resources
as long as the product
containing the image is
not sold [for
commericial use/profit].

33. BACKUP COPIES OF STREAMING FILES:
108C IS NOT YOUR FRIEND!
“The right to archive under subsection (c) (for published works)
applies only to replacement of a damaged, deteriorating, lost or
stolen copy, or when the format of the recording has become
obsolete, and then only when a reasonable effort to locate an
unused replacement at a fair price or a device that
accommodates the format has proven unsuccessful!” - Copyright
Crash Course, “Copyright in the Library - Making Copies:
Archiving”, Georgia Harper, Univ. of Texas Libraries

34. …BUT HOW TO SAY…?
NERL: Licensee is authorized to make such further copies in
perpetuity as it may deem necessary for purposes of archival
preservation, refreshing, or migration, including migration to
other formats, so long as the purpose of such copying is solely
for continued use and/or archival retention of the data and does
not violate or extend the use rights contained in this Agreement.
ALTERNATIVE: The Licensor shall allow the Licensee to
participate in the archiving of one complete copy of the
Licensed Materials, and to use such archived Licensed Materials
in the event the original copy is scratched, broken, or otherwise
made unplayable in the normal course of use.

35. DEFINING REASONABLE AMOUNT
Vendor: “Reasonable Amount” shall mean not more than 10%
of the content contained in the Licensed Materials.
Proposal: The term “reasonable” as it relates to amounts of
licensed material subject to copying, duplication, or
dissemination by licensee and its users will be determined on a
case by case basis using the four Fair Use analysis factors as
codified at 17 United States Code Sec. 107.

36. CLOUD PLATFORM DISTRIBUTION
Licensee can distribute the software via a cloud
platform to workstations located on the primary
and satellite campuses, with appropriate security
ensuring that access is not granted to other
locations or institutions.

37. CLINGING ON TO SINGLE-SITE.

38. DO OUR COMPLETENESS OF
CONTENT CLAUSES NEED MORE
TEETH?
See recording of:
ER&L 2013, Keynote,
Dan Tonkery,
“Improving
communication and
relationships between
librarians and
publishers”

39. WHAT’S NOT WORKING
• Making backup copies of streaming files!
• Half payment while testing completeness of content
• PERPETUAL ACCESS
• Requiring publisher participation in PORTICO/LOCKSS
• Blanket “fair use” permissions
• Requiring all changes to EULA to go through you
• Requiring Discovery Services participation
• Grant of your researchers’ rights to deposit into an open repository

40. Authorized Users must be those
users who are using the
Licensed Materials for
legitimate educational purposes,
whether as a mental health
professional in training or as
part of other relevant Licensee-
approved educational courses or
assignments.
The Licensee shall encourage
Authorized Users to view the
Licensed Materials in as private
an environment as possible, and
out of sight or hearing range of
unauthorized users as
reasonably practical.

41. We need to stop licensing in
silos!
How can we better share
what’s not working,
exceptional clauses & new,
sticky issues with each other,
as a community?
How can we leverage our
community power, to say no
to untenable licensing terms?
Do you want to help answer
these questions? Do you
have ideas of how we can
better work together?
Let me know:
LTAYLOR@TXSTATE.EDU

42. LICENSING @ NASIG 2014
Wednesday, April 30, 1-5p
Preconference: Building Your Licensing and Negotiation Skills Toolkit
Claire Dygert, Assistant Director for Licensing and E-Resources,
Florida Virtual Campus
Saturday, May 3, 10:40-11:40
The Licensing Lifecycle: From Negotiation to Compliance
Eric Hartnett & Jane Smith , Texas A&M University
Saturday, May 3, 3:50-4:50
Lassoing the Licensing Beast: How Electronic Resources Librarians
can build competency and advocate for wrangling electronic content
licensing.
Shannon Regan, Licensed Content Librarian, Mercer University

43. Liane Taylor, ltaylor@txstate.edu

44. PHOTO CREDITS
Slide 1: Eole Wind, Entering Hyperspace,
https://www.flickr.com/photos/73491156@N00/380316678, License:
https://creativecommons.org/licenses/by-nc-sa/2.0/
Slide 2: Trois Têtes (TT) , Hi, http://www.flickr.com/photos/33286810@N00/2097531807/,
License: http://creativecommons.org/licenses/by-nc/2.0/
Slide 3: Pietro Izzo, Real Soccer, http://www.flickr.com/photos/22443621@N00/208878316,
License: https://creativecommons.org/licenses/by-nc-sa/2.0/
Slide 4: Killbox, corn_bread, http://www.flickr.com/photos/58068110@N00/2651210899/,
License: https://creativecommons.org/licenses/by-nc/2.0/
Slide 5: Koocbor (Rob) Bike Wheel, http://www.flickr.com/photos/30451996@N00/4505318710,
License: https://creativecommons.org/licenses/by-sa/2.0/
Slide 10: Rawdon Fox, Odd One Out,
http://www.flickr.com/photos/34739556@N04/6802867364, License:
https://creativecommons.org/licenses/by-nc/2.0/
Slide 14: Gord McKenna, There was only one rule,
http://www.flickr.com/photos/23196822@N00/315490873/, License:
http://creativecommons.org/licenses/by-nc-nd/2.0/
Slide 16: http://www.flickr.com/photos/47325272@N00/2541408630/, License:
https://creativecommons.org/licenses/by/2.0/

45. PHOTO CREDITS
Slide 17-21: http://www.flickr.com/photos/88875472@N00/3856456237/ n3wjack's world in
pixels License: https://creativecommons.org/licenses/by-sa/2.0/
Slide 22: http://www.flickr.com/photos/7578081@N07/2918682767/ swisscan
https://creativecommons.org/licenses/by-nc-sa/2.0/
Slide 29: Wolkman-K, The Safety, http://www.flickr.com/photos/9948642@N05/3673428383/,
License: http://creativecommons.org/licenses/by-nc/2.0/
Slide 36: kevin dooley, Sky symphony,
http://www.flickr.com/photos/12836528@N00/5192063662/, License:
http://creativecommons.org/licenses/by/2.0
Slide 37: SuperFantastic, regret, http://www.flickr.com/photos/35423169@N00/31545146
License: http://creativecommons.org/licenses/by/2.0
Slide 38:Nora Arias Loftis, Go ahead; make my day,
http://www.flickr.com/photos/19136940@N00/275356843/ License:
http://creativecommons.org/licenses/by-nc-nd/2.0/
Slide 41: Dale, Kentucky Farm, http://www.flickr.com/photos/12654904@N05/9661092099 ,
License: https://creativecommons.org/licenses/by/2.0/
Slide 43: Vern Hart, DSP 147: Thank You! 2007-10-11,
http://www.flickr.com/photos/37183619@N00/1574355240, License:
http://creativecommons.org/licenses/by-nc-sa/2.0/