The purpose of this document is to educate Health Sciences Library staff about licensing basics and to provide consistent policies and procedures for handling licenses associated with the library’s resources. This policy is not intended to act as a substitute for legal advice. Proper legal advice should be obtained when necessary.
What is a license?
Licenses define the rights and obligations of the parties to the license and establish the conditions under which property such as an information resource may be used. Licenses generally include three components:
- An offer to do something, for example, to purchase software or provide access to an online database;
- Acceptance of the offer;
- Consideration of some value in the eyes of the law such as a payment of money.
Licenses vary from vendor-to-vendor but normally contain the following basic clauses:
- Parties to the license: Parties subject to a license include the Licensor who grants rights to use property and the Licensee who receives rights to use the property. A license should state the legal names and addresses of the parties.
- Purpose of the license: The purpose of the license, for example, to lease access to a specific database, should be set forth in the license.
- Rights and obligations of each party: The rights and obligations of each party should be clearly stated. For example, the Licensor will provide online access to the database to the Health Sciences Library and its users for a specific period of time and the library agrees to limit access to the database to authorized users.
- Use of content: The license should define how and for how long property can be used. For example, an e-journal may be accessed by the library’s authorized users for one year. In some cases, the Health Sciences Library purchases an e-resource such as journal backfiles/archives rather than leasing access for a specific period of time. In such cases, access to the resource is perpetual (although publishers often charge an annual access fee).
- Compensation: This clause states how much money the library will pay the Licensor for access to the resource.
- Copyright ownership: Licenses should clarify copyright ownership of the property being purchased or leased. In general, the creators or producers of information resources retain ownership of their intellectual property. Some publishers license the rights other vendors to sell access to their product. For example, Ovid Technologies, Inc. does not own the copyright to the databases it licenses but it has legally acquired the right from the database producers to resell access to its customers.
- Warranties: Warranties clarify promises that the parties are making, for example, a Licensor may warrant that it owns the resource (intellectual property) being licensed or that it has legally acquired the rights to sell or lease access to the property.
License agreements also usually include provisions that are not specifically library-related such as clauses related to jurisdiction, applicable law, arbitration, and indemnification.
Procedures for Handling Library Licenses
The Strauss Health Sciences Library enters into licenses with many vendors and publishers to provide library users access to resources. It is the responsibility of the library’s Collection Management Department to coordinate review of library licenses. Licenses for all resources, including click-through licenses, shrink wrap licenses, and licenses that do not require signature, should be forwarded to the Collection Management librarians for handling.
All library staff responsible for purchasing resources, including software and media, must obtain copies of licenses for review before resources may be purchased or access to resources may be activated. Staff should review each license carefully to ensure that library compliance with terms and restrictions is possible. Staff should then forward licenses, noting any potential problems, to the Collection Management librarians.
In some instances, the Strauss Health Sciences Library may obtain software from other UCD units that have purchased site licenses on behalf of multiple campus units. The unit purchasing the site license is responsible for reviewing, negotiating, and maintaining a copy of each such license to ensure compliance with terms and restrictions. A copy of these licenses should be obtained and filed in the library’s Administration office. A copy may also be maintained in the library department responsible for the resource, so that staff members responsible for enforcing the license provisions have ready access to it.
Because license agreements vary from vendor-to-vendor, the Collection Management librarians review each license carefully. It is their responsibility is to assess, negotiate, and adapt library-specific license terms to meet the needs of the library and its users. This is critical to ensure use of licensed resources is granted to the fullest extent possible.
Some of the library-related terms that should be carefully reviewed and negotiated as needed include the following:
- Definition of authorized users: Authorized users are the individuals who are designated permission to access and use the resource being licensed. The Health Sciences Library requires that the definition of authorized users in all licenses include primary library users and walk-in users while physically in the library building.
- Off campus and remote access: The Strauss Health Sciences Library requires that eResources be available to authorized users, excluding walk-in users, from any physical location. The Strauss Health Sciences Library authenticates users accessing resources from off site in order to comply with license requirements that restrict remote use to the library’s authorized users. An exception to the requirement for remote access may be made if the resource is highly desired by the Library’s clientele (example: UpToDate).
- Interlibrary loan and ARIEL rights
- Search, copy, print, and download rights
- Scholarly sharing, course reserves, and distance education rights
- Archival Rights and/or Perpetual Access
- Usage Statistics: The Collection Development librarian needs information about how much eResources are used in order to make decisions about renewing or discontinuing access. Counter-compliant statistics are preferred.
The Strauss Health Sciences Library refrains from purchasing products when license restrictions would impede the ability of primary library users to make adequate use of the resources or be impossible for the library to enforce.
There are a number of resources that library staff can use for guidance with licenses including the following:
- Procurement Rules from the University of Colorado System
- LIBLICENSE Licensing Digital Information: A Resource for Librarians developed by the Yale University Library
Working with University Contracts Administrators
Once the Collection Management librarians have negotiated library-related license terms, the license accompanied by a Licensing Review Submission Form is sent to the Strauss Health Sciences Library’s designated Contracts Administrator in the university’s Procurement Service Center. Contracts Administrators are responsible for reviewing licenses for compliance with university policies and regulations as well as Colorado law and will negotiate such terms with Licensors as necessary.
Typically, the Contracts Administrator requires at least a month to review and negotiate a library license – longer if the license is very complicated and/or requires significant negotiation. When this part of the process is completed the Contracts Administrator will send the amended license to the Licensor for signature. The Licensor is required by university policy to sign the license first. After the Licensor has signed, the Contracts Administrator will have the appropriate university signing authority sign and finalize the license.
Only individuals who have been formally delegated signature authority by the Procurement Center may sign licenses. There has been no delegation of signature authority to anyone at the Strauss Health Sciences Library. Library staff members do not even have the authority to click through electronic licenses on behalf of the library or university. Individuals clicking through license agreements without signature authority bind themselves but not necessarily the university. These rules apply even if the eResource is free, a trial version, or being offered at a dramatically reduced cost.
Once the license has been signed by both parties, the Contracts Administrator will send the original to the Collection Development or Acquisitions librarian who initiated the license. The Strauss Health Sciences Library always retains the original copies of its licenses; the Procurement Service Center retains a copy of each license. The Acquisitions Librarian enters pertinent license terms in the library’s Electronic Resources Management System and files the license, along with any necessary supporting documentation, in the library’s Administration office.
University rules require that a license be fully signed and executed before the library can initiate access to or pay for a resource. Failure to comply with this policy creates an “After-the-Fact” (ATF) purchase, requiring Collection Management staff to follow special procedures. An email communication from the Procurement Center dated August 10, 2006 stated: “CU and the vendor cannot do any work at all---even what seems to be preliminary work of setting up an account or configuring access---until the contract is fully signed. Vendors view such preliminary work as being the beginning of the deal between them and CU and won't change the dates on their documents … thus creating an after-the-fact situation.” Purchases costing the Strauss Health Sciences Library less than $4,500 are not subject to the university’s ATF policy.
ATF purchases should be avoided by obtaining licenses and sending them to the Procurement Service Center as soon as possible before the subscription or access to the resource is scheduled to begin. In some cases, however, particularly consortial purchases with many participating libraries requiring more time to negotiate the license, an ATF purchase may be unavoidable. In these instances, the Collection Development or Acquisitions librarian handling the license will be contacted by the university Controller’s office and asked to submit a letter explaining why the license was processed after-the-fact. The Controller’s Office has provided a format for the letter which should be followed. It takes a minimum of five business days for the Controller to approve payment of an ATF purchase.
Licenses Associated with Consortial Purchases
The Strauss Health Sciences Library participates in many consortial and group purchases to take advantage of the aggregated purchasing power of the participating libraries. This enables the library to lease/purchase access to resources at discounted prices and maximize the resources available to library users. The groups the Strauss Health Sciences Library collaborates with are:
- University of Colorado Libraries
- The Greater Western Library Alliance
- Bibliographic Center for Research
- Colorado Alliance of Research Libraries
- MCR Regional Licensing Consortium
- Colorado Library Consortium (CLiC)
Consortium staff members usually handle the licensing process on behalf of libraries participating in each purchase. In these cases, Collection Management librarians should receive a draft copy of the license to allow adequate time for review. Input is then provided to the consortium regarding acceptable terms for the Strauss Health Sciences Library. These licenses are usually signed by the consortium on behalf of the participating libraries but may require review by the library’s Contracts Administrator. The university’s special license provisions must also be attached to the license and approved by the Licensor. A copy of the final signed license should be sent to the Collection Development or Acquisitions librarian. Terms should be entered into the library’s ERMS system and the license filed in Administration.
Compliance with License Agreements
The Strauss Health Sciences Library complies with all license agreements associated with purchase and leased resources. The individual library unit that houses, uses, or provides access to each resource is responsible for day-to-day oversight and compliance with licensing requirements. Final responsibility for compliance with library license agreements rests with the Library Director. The Strauss Health Sciences Library promotes compliance with licensing agreements by its user community via Policy on Responsible Use of Online Resources.