Most e-resource subscriptions will require a license agreement between the publisher/vendor and the institution the library serves. The license is a legal document between both parties that covers who can access what, for how long, and how materials may be used. The type of organization and for whom the resource is being licensed for use will, in many cases, affect the resource price. For example, academic-only use of a clinical resource is often less expensive than if it is licensed for clinical use as well.

Negotiating Licenses

The most important thing to know about licensing is that you can negotiate the terms of the license. If a vendor is unwilling to negotiate any terms with you, you may want to reconsider licensing that product. Negotiating is a skill that you develop over time. Also, you are usually not negotiating alone – often there are other library colleagues who would be a part of the negotiation process such as e-resources and licensing managers, collections strategists, legal counsel, and accessibility coordinators.

When negotiating licenses always consider the values and mission of your organization. Adding a license addenda regarding remediating content for user accessibility or asking if the resource is compliant with accessibility standards may be priorities for your organization. (Along those lines, the Triangle Research Libraries Network (TRLN) Guide to Negotiating Accessibility in E-Resource Licenses may be helpful to you.) Removing indemnity clauses or other license components that would put an undue burden on your institution can also be important or may be required. Removing and adding clauses and components of a license is necessary and expected. The original document provided by the vendor is a starting point.

An important factor for negotiating and managing licenses is to understand the organization you are serving. Are you negotiating solely for an academic institution or do you also need to provide access to a hospital or clinical professionals? Is the resource solely for hospital and clinical use? Will it be integrated with the Electronic Health Record system (EHR)? These latter situations may require close collaboration with health systems departments or divisions throughout the negotiation process.

Managing and Maintenance

Conducting a methodical review of current licenses is a process that might seem daunting but can be done as renewals come due. It may be tempting to just continue renewing if there have been no issues with the resource or the vendor but it is worth the effort, and it is good practice. Establishing priorities and identifying “deal breakers” can act as a checklist when reviewing current or new licenses.

Documenting licenses includes not only retention of the finalized agreement, but also the documentation of agreements and points of clarification that were shared verbally or by email. Capturing these exchanges and maintaining them in a shared repository will be greatly appreciated as time passes and there are staffing changes. Maintaining print documentation of these exchanges along with the final agreement may be worth considering as well.

Comprehensive Licenses, Amendments, & Common License Elements

A comprehensive license (sometimes referred to as a “master” license) may be an option when licensing several products from one vendor. This is one license that lays out all of the standard license terms and elements for content from that company. These are often 30 pages or more and may require approval from your institution’s legal team.

When adding new content from the same vendor or new uses of existing content (e.g., including images in educational materials), instead of negotiating a new license, amendments (sometimes called an addendum) may be added. They do not repeat the boilerplate language from the comprehensive license. Amendments tend to be shorter and simpler than the comprehensive license, and are a quicker way to add new content with less “red tape”, since a comprehensive license already exists between the organizations.

As legal and binding documents, a typical comprehensive license will include the following elements and terms, generally in the order listed below. Most of these terms are defined by LIBLICENSE.

• Parties to the agreement
• Definitions
• Description of licensed materials
• Delivery and access, including authentication
• Authorized patrons
• Authorized site or sites
• Authorized or permitted uses and any prohibited uses
• Licensor obligations
• Licensee obligation
• Mutual obligations
• Term of the agreement, including process for renewal and termination
• Warranties, indemnities, and limitations on warranties
• Financial exigency clauses
• Governing law and dispute resolution
• Non Disclosure
• Fees and payment (may appear in an attached schedule)
• Archiving and perpetual access
• Miscellaneous provisions, such as force majeure
• Signatures
• Schedules, such as fees and payment, detailed list or description of the content that is licensed, specific information about access and authentication (e.g., IP addresses), list of participating institutions if more than one
• Addenda

Open Access Agreements

cOAlition S and the Association of Learned and Professional Society Publishers (ALPSP) published a toolkit to foster Open Access agreements (April 2022) that includes sample licenses and a workflow guide.

Authorized Signatory

Most librarians will not have the authority to sign licenses on behalf of the institution and will need to work with a purchasing or legal department. However, it is still important for a librarian to review the license and negotiate terms related to use of the product since purchasing/legal staff members probably aren’t well-versed in these areas. Their focus is on whether the license is in compliance with institutional and state policies.

Considerations for Public/State Institutions

Public and/or state institutions are usually subject to state laws governing contracts. Potential issues include:

• Open Records: Some states have open records acts that prevent public institutions from including non-disclosure clauses in licenses. Many vendors will ask to include a non-disclosure statement that prevents the library from sharing the terms of the license with anyone outside their institution in order to keep their pricing confidential.
• Indemnification: Most licenses will ask the institution to indemnify the vendor (see LIBLICENSE definition here). Many states have laws preventing institutions from indemnifying any vendor, so this clause will need to be removed.

Things to Consider

• Avoid language such as “warrants”, “promises”, “makes every effort” or anything that asks the library to police patron behavior. It is very difficult for any library to monitor what patrons are doing with licensed materials. In general, you don’t want to include any terms that you can’t enforce, but sometimes it won’t be possible to remove them.
• Interlibrary Loan (ILL): Make sure you can provide material from the licensed product to other libraries via ILL, if appropriate. Avoid stating which ILL product you will be using (e.g., ILLiad), since systems can change over time. Most vendors will ask that you use a secure system. Make sure you have the ability to supply electronic copies (e.g., PDFs, TIFFs) of articles/chapters.
• Course Reserves: Make sure you have the ability to include materials in electronic course packs or on course reserves. You may also want to ask for language that allows materials to be posted on course management sites, such as Blackboard. Avoid mentioning a specific CMS/LMS as these can change over time.
• Authorized patrons: Ensure that all your patron groups are included in the authorized patrons section of the license. The default for most licenses will be affiliated patrons of the institution (e.g., students, faculty, staff). If you allow access to groups such as preceptors, private practice physicians, volunteer faculty, and/or alumni, you may need to request additional language that covers these patrons. However, be aware that adding more patrons may affect your resource cost. Walk-in patrons are another consideration; many times you will need to request language to allow access for unaffiliated patrons using resources within the physical library.
• Method of Access: The license should specify the manner in which your library can provide access, such as via IP authentication, username/password, or proxy server. Consider what is feasible for your library staff — IP authentication and proxy server access require some IT/systems support, but managing patron names and passwords can be very labor intensive for library staff. In most cases, you will want to use the same access method for all your e-resources to make things easier for your patrons. For an overview of common authentication and authorization mechanisms used in academic libraries, see Carter and Hanson’s white paper and webinar recording (2022).
• Accessibility: The license should include language about using reasonable means to make the content available to patrons, regardless of their perceptual abilities. This could be through built-in features, compatibility with other software, or through permission for the licensee to make the content available through other means. At a minimum, the license should include the right for the licensee to receive up-to-date Voluntary Product Accessibility Templates (VPATs) upon request. The license may make reference to Web Content Accessibility Guidelines (WCAG), Sections 508 and 504 of the Rehabilitation Act, or other guidelines.
  • The Big Ten Academic Alliance (BTAA) has standardized e-resource accessibility license language available.
  • See also the Triangle Research Libraries Network (TRLN) Guide to Negotiating Accessibility in E-Resource Licenses (December 2022).
• Text or Data Mining rights: Your institution’s license should include a clause about how patrons can download massive quantities of information from e-resources for text or data mining purposes.
• Shared licensing and consortial relationships: If some of your licenses are handled at a consortial level, make sure you have access to a copy of the agreement. Typically, the consortia will task someone with reviewing the license on behalf of the group, and you may not see the license before it is signed.
• Record keeping: Keep a copy of the license, preferably the version that has been signed by all parties. In particular, the library should retain records that specify perpetual access rights, especially when the institution has a records retention policy that discards financial records after a given period of time. Many electronic resource management (ERM) tools allow you to track license terms.

Resources with Sample Contract Language

• American Association of Law Libraries’ Principles & practices for licensing electronic resources (2018).
• Association of Southeastern Research Libraries’ The ASERL Eleven: Recommended principles and terms for electronic resource agreements (2022). There is also a Google Doc version of the document for easy cut-and-paste of suggested contract language.
• Big Ten Academic Alliance’s Library e-resource accessibility – Standardized license language (2022).
• California Digital Library’s Licensing Toolkit (2019). Includes licensing and technical guidelines as well as information on cost sharing models.
• LIBLICENSE’s Model License Agreement (2014) also includes links to other organizations’ model licenses (last updated 2022). It may be useful to view their pages on licensing terms and vocabulary as well.

Online Courses for Professional Development

• Contracts and Licensing lesson from the Open Negotiation Education for Academic Libraries (ONEAL) project.
• Copyright and Open Licensing Issues in Libraries from Library Juice Academy.
• CC Certificate for Open Culture/GLAM from Creative Commons covers copyright issues for Galleries, Libraries, Archives and Museum as well as open licensing considerations.