Licensing Digital Content Praise for the Previous edition: “Harris makes a complex subject readily understandable and well within the lay person’s grasp.” —Kenneth D. Crews, professor of law and director of the Copyright Management Center, Indiana University “This is an important book that provides a very practical approach to the legal and policy issues at stake. The content is very solid— straightforward, easy to read, and logically arranged.” —Laura N. Gasaway, director of the Law Library and professor of law, University of North Carolina “Harris writes about a complicated topic with enthusiasm and clarity. With her straightforward and accessible advice, licensing novices will be able to make confident strides in securing excellent contractual terms.” —Ann Okerson, moderator, Liblicense-L; Associate University Librarian, Yale University “Filled with down-to-earth advice from an expert who fully understands the challenges facing non-lawyer librarians, this step- by-step guide to setting up licensing policy, understanding contract terms and conditions, and negotiating institutional and consortia licensing agreements is invaluable. Make this book required reading for everyone on the content licensing team.” —Gail Dykstra, independent research consultant, Dykstra Research “This book is remarkably readable, free of legal jargon, and thoroughly enjoyable.” —Library Resources & Technical Services “Very useful for academic and public librarians or information professionals . . . well written and insightful.” —Portal Licensing Digital Content A Practical Guide for Librarians Second Edition lesley ellen Harris American Library Association Chicago 2009 Lesley Ellen Harris is a copyright, licensing, and digital property lawyer who con- sults on legal, business, policy, and strategic issues in the publishing, entertainment, Internet, and information industries. Since 1991 her practice has served a broad range of clients, and she frequently works with libraries, archives, museums, and educational institutions. She often speaks at conferences, and teaches in-person and online courses on copyright and licensing through Copyrightlaws.com and in conjunction with national and regional associations in Canada and the United States. Harris began her career in copyright in 1984 working with a lobbying group interested in revising Canada’s copyright laws. From 1987 to 1991 she was senior copyright officer with the Canadian government, in which capacity she helped revise the country’s copyright laws. Harris is the author of the books Digital Property: Currency of the 21st Century (1997), Canadian Copyright Law (3rd ed., 2001), Licensing Digital Content: A Practical Guide for Librarians (1st ed., 2002), and numerous articles. Since 1997 she has been the editor of The Copyright and New Media Law Newsletter. She maintains the website Copyrightlaws.com and the blog Copyright Answers (www.copyrightanswers.blogspot.com). Harris may be reached at [email protected]. While extensive effort has gone into ensuring the reliability of information appearing in this book, the publisher makes no warranty, express or implied, on the accuracy or reliability of the information, and does not assume and hereby disclaims any liability to any person for any loss or damage caused by errors or omissions in this publication. The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992. Library of Congress Cataloging-in-Publication Data Harris, Lesley Ellen. Licensing digital content : a practical guide for librarians / Lesley Ellen Harris. — 2nd ed. p. cm. Includes bibliographical references and index. ISBN 978-0-8389-0992-8 (alk. paper) 1. Copyright—Electronic information resources—United States. 2. License agreements. 3. Libraries and electronic publishing. I. Title. KF3024.C6H368 2009 346.7304'8—dc22 2009008152 Copyright © 2009 by Lesley Ellen Harris. All rights reserved except those which may be granted by Sections 107 and 108 of the Copyright Revision Act of 1976. ISBN-13: 978-0-8389-0992-8 Printed in the United States of America 13 12 11 10 09 5 4 3 2 1 To my parents contents Acknowledgments ix Introduction xi Note to Canadian and Other Non-U.S. Readers xv Quick-Starter Tips for a Successful Agreement xvii 1 • When to License 1 2 • demystifying the Licensing experience 17 3 • Learning the Lingo 35 4 • Key digital Licensing clauses 45 5 • Boilerplate clauses 83 6 • un-intimidating negotiations 93 7 • Questions and answers on Licensing 105 8 • Go License! 119 aPPendixes a • Section 107 of the U.S. Copyright Act on Fair Use 129 B • Section 108 of the U.S. Copyright Act on Interlibrary Loan 131 c • Digital Licensing Clauses Checklist 137 Glossary 139 Online Resources 151 Index 153 vii acKnoWLedGments I would like to thank the numerous people who helped me write the second edition of Licensing Digital Content. This includes all the people from whom I’ve learned about digital licensing through in-person and online seminars, from questions in e-mails, and from comments on the blogs www.copyrightanswers.blogspot.com and www.licensingdigitalcontent.blogspot.com. Thank you to Jennifer Sander for her research, and to Ann Okerson of Liblicense. My thanks to all at ALA Editions, including J. Michael Jeffers, Eugenia Chun, Jill Davis, and Christine Schwab, and to my copyeditor, Paul Mendelson. ix