“WE’RE DOOMED” OR “DON’T PANIC”? E BOOK LICENCE ISSUES

Professor Charles Oppenheimc.oppenheim@btinternet.com

11th Annual E-Books Conference, 27/10/11

WHO ARE THE PLAYERS?• Author• Publisher - maybe also in other media; can be commercial, learned

society, Government agencies, not for profit bodies, Universities, etc.• Aggregator – not always in the chain as e-book publisher might sell

directly; normally a commercial organisation• Intermediary, such as Amazon, selling via Kindle or through someone

else’s hardware• Librarian – not always in the chain as the sale may be to the user

directly• Reader/user • Each player typically has a licence or some other contractual link

with the next in the chain, but not with anyone more distant in the chain

THE CONTRACT (LICENCE)

• Negotiated between parties of different strengths - normally the supplier is in the stronger position, but not always

• In most cases it is “take it or leave it” - no room for negotiation - but this is not so common in the case of large users

• N.B. Unfair Contract Terms Act does NOT apply when the licensee is an organisation

WHAT IS A LICENCE?• Not a sale (assignment)• Compare to house sale/rent• Licence is equivalent to renting• Why isn’t it an assignment/sale?• If you sign a licence, you don’t

necessarily get the e-book in perpetuity

THE PROBLEM WITH LICENCES

• Series of contracts with a series of suppliers, each with different terms and conditions

• This in turn requires you to inform your users• Some may impose unacceptable terms and

conditions on your users• IN THE END, IT’S UP TO YOU WHETHER YOU

ACCEPT THE LICENCE OR NOT, AND WHAT YOU TELL YOUR USERS

MODEL LICENCES

• http://www.licensingmodels.org/E-bookLicense.html• http://www.jisc-collections.ac.uk/nesli2/NESLi2-Mod

el-Licence-/ - there is an e-book model licence but it doesn’t seem to be online yet; no doubt it will be similar to the e journals model licence shown at the above URL.

• Have a good look at both of them, decide which clauses look good in them, and try to get them incorporated into any e-book licence you deal with!

CLAUSES YOU MIGHT ENCOUNTER

• Parties – who is signing• Definitions – of information being supplied, jargon

terms• Obligations on licensor – few, if any, , e.g., to inform

of changes to content or prices; user manuals, help desk, training.

• Term, and renewal• Fees payable, VAT

CONDITIONS OF USE

• What can, and cannot be done with the information, e.g., redissemination, saving copies, systematic copying, % that can be copied, merger with other data, re-selling of content (either in part, or the entire e-book), lending, downloading onto mobile devices, length of time downloads can be retained for, extent of printing, adaption of content, limitations to, e.g., private research or private study…..e-book licences vary wildly on these points – make sure you are happy with what the licence says!

• Copyright notices, if any, that must appear• Distribution to Intranets/portals• Numbers of simultaneous users/machines

AUTHORISED USERS

• Full time staff? Part-time staff? Certain types of staff? Visitors? Walk-in users? Anyone and everyone?

WARRANTY AND INDEMNITY

• Warrants that information is owned by licensor, or licensor is empowered to enter into licence

• Warrants that information does not infringe copyright or other similar rights anywhere in the world (sometimes limited to one country though)

• Warrants that information does not break law, e.g., is not defamatory, pornographic, does not breach anti-terrorism laws, data protection laws, etc. (Normally NOT on offer, but should ideally be present)

• Indemnity for licensee should any of the warranties turn out not to apply

OBLIGATIONS ON LICENSEE

• To keep passwords confidential• To deal with any breaches of contract by authorised

users• But attempts to REQUIRE licensee to police users

should be resisted; “use best endeavours” to do this better from user point of view, worse from producer point of view

• Attempts to make licensee liable for misdeeds of users also should be resisted if possible

• To destroy all copies of content, software, etc., at termination

LIABILITY• What if the information is erroneous?• Can cause physical injury• Can cause financial damage• Many Court cases around the world have shown

that information providers cannot get out of obligations with catch-all waiver clauses, but do expect searchers to use diligence and common sense, especially if they are professionals

KEY WORDS TO LOOK OUT FOR

• “to the extent permitted by law, we waive liability…”

• Too often e-book publishers make no representations of, and accept no liability for, accuracy, correctness, lack of omissions or reliability. Such clauses are invalid in UK law; better to try and persuade the licensor to use the words above.

PROTECTING STATUTORY RIGHTS

This agreement is without prejudice to any acts which the licensee is permitted to carry out by the terms of the Copyright Designs and Patents Act 1988, and nothing in this agreement shall be construed as affecting or diminishing such permitted acts or exceptions to copyright in any way whatsoever.

This wording or similar should be present – if not, press for its inclusion!

FINAL BITS• Applicable law – very important; best if it is your home

country, but this may not be possible if dealing with a major vendor. Often left ambiguous or ignored – very unhelpful

• Dispute resolution – arbitration – rarely mentioned but can be useful

• Complete agreement – nothing else constitutes any part of it• May not assign rights and obligations except with agreement of

other party – rarely mentioned but can be useful• Confidentiality – keep this contract secret, privacy of client• force majeure (circumstances beyond reasonable control)

QUESTIONS/DISCUSSION