The November 2014 revised Model License has now been published and is available on this site on the Model Licenses page. This comment page is accordingly closed. We express our gratitude to all those who contributed to the discussion that led to the production of this document. In addition to comments on this web site, we received many dozens directly via e-mail, and every comment was studied by the drafting team.


Last updated: November 24, 2014

4 Responses to Liblicense Model License Agreement & Commentary

  1. Overall, this looks good for an institution. There are some adjustments that would need to be made to make this useful at the consortium level (we, for example, always have a statement that BCI has a mandate from all participating institutions to negotiate and sign licence agreements on their behalf, and that all participating institutions agree to respect all clauses in the licence agreement).
    Question : can I interpret 3.2 c to meant that data mining is permitted – referencing the word “analysis” to mean that I can do this search (which is what I consider data mining to be – one big search !).
    Comment : 5.1 b I had to read it twice to understand – I would write “Discover Service Systems are defined as user interface…” to make this clearer.
    Comment : 5.1 e I wasn’t quite sure what the last sentence actually means : I eventually thought “Licensor shall provide Licensee with a current completed Voluntary Product Accessibility Template (VPAT) to prove Licensor compliance with the federal Section 508 standards.” It’s clear to me, but up to you if I’ve interpreted it correctly…
    Comment : 5.1 u I think that if the Licensor agrees to annual review the number of OA articles, the Licensor should also share this annually with the Licensee… (means addition of the word “annually” in the last sentence).
    Comment/question : 8.1 I have some difficulty with this clause, as it doesn’t really define clearly what “any Licensed Materials that were accessible during the term” actually is. On the surface, it sounds OK. But, what about vendors (such as Nature) who offer 4 rolling years plus the current year. So, the minute a Licensee begins a subscription, they access 5 years – but really their subscription is for only the most current year. If the Licensee ends the subscription after, say, 6 years, they do not have a total of 10 years of Material but only 6 years. Some kind of clarification of this – that, for example the Licensed Materials for the period subscribed to – would be useful.
    Otherwise, we like to have a clause that says that new content or new titles should be added at no extra cost or otherwise an option to refuse new content…
    Overall, a clear license ! Thanks. Christine Hiller

  2. Diane Grover says:

    Thanks for working on this to keep it updated. I’ve used it many times over many years to help with negotiation. Here are a few comments for your consideration:
    Authorized sites: I’m in a multi-campus institution under one administration and have to battle this one over and over. I saw this useful definition the other day:” Authorized Sites” are a plurality of geographically remote campuses, complexes or office buildings that are under a single administration at which only the Subscriber and Authorized Users can access the Subscriber’s secure network using an authorized IP address. For an institution that has multiple locations in the same city that are administered independently, each location is not considered to be a different site.
    Access from remote sites is permitted under this License if the sites are disclosed and no consortia or other forms of subscription sharing are allowed under this License.
    Authorized uses: printed coursepacks are not included but they are still used heavily on my campus.
    Authorized uses: I’d like to see something added for streaming media. Perhaps someone has a good example or two
    Clause 4.3 We would like an exception for fees on a cost recovery basis for printed coursepacks
    Clause 5.1.j 98% seems too low now and would be 7 days in a year. I would think industry standard is more like 99.5
    Clause 5.1 on DRM I would also like to see a statement as to the practical effect on 3.2a Usage Rights. For example; printing limited to “x” pages per day
    Clause 5.3.c.iii This is problematic as the Licensee (the Library) may not have the technical ability nor the authority to terminate a particular Authorized User’s access to a particular set of licensed materials. In my institution, this would mean revocation of all their university network access and the Library would not be responsible for that.
    Clause 5.4.c references 6.3, but I think you mean 6.4
    Clause 8.1 same comments as Christine Hiller’s above
    Clause 9.3 my institution prefers there is no licensee indemnity. We will accept a mutual indemnity if its unavoidable

  3. Linda F. Wobbe says:

    Thanks for this useful updating. I use this model license frequently at my institution and my work with the SCELC consortium.

    My legal counsel guides me against the use of the word “ensure” as a level of performance beyond reasonable. “Ensure” is used in descriptions of both licensor and licensee obligations. For example in 5.2 b. “Protection from Unauthorized Use. Licensee will use reasonable efforts to ensure
    that only Authorized Users can access the Licensed Materials.” This can be rewritten to avoid the use of “ensure”, as follows: Licensee will use reasonable efforts to restrict access to the Licensed Materials to only Authorized Users.

    6.4. I think it would be more helpful if the “Model” agreement stated a breach cure period of 30 days. Vendors want to say “7 days”. I need the model license to have a more reasonable cure period. I don’t think the example is a strong as saying 30 days.

    Thanks for giving me a chance to view the draft and express my opinions.

  4. Todd Puccio says:

    We always try to put this language in with the

    Comment 1 :
    Limitation of liabilities area :

    Notwithstanding anything to the contrary contained in this Agreement, Licensee shall not be liable for improper use of the licensed Service and/or Content by an Authorized User if (i) Licensee takes reasonable measures to ensure that such Authorized Users have knowledge of the use restrictions concerning the Service and/or Content that is the subject matter of this Agreement, and (ii) Licensee does not intentionally assist in or encourage unauthorized use of the licensed Content.

    Notwithstanding anything to the contrary contained in this Agreement, the Licensee shall not be liable for the use of the Service and/or Content by an unauthorized user if (i) the Licensee takes reasonable measures to ensure that only Authorized Users have access to the service and/or Content, (ii) the Licensee does not intentionally assist or encourage unauthorized user access, and (iii) the Licensee takes prompt action to stop an unauthorized user from using the licensed Service and/or Content upon learning of such unauthorized use.

    Comment 2 :
    In the 10.8 Notices Secion :

    The notices must also be addressed to the Contact person specified in the license and/or a Person of significant responsibility at the institution.
    Either a specified Contact person or a supervisor of that person – or the supervisor above them etc.

    — Theoretically the way it reads here a notice can be sent to the Janitor at the valid address and still be considered notice. —

    This has happened to us – cease and desists notices were sent to the general address with no person specified. The responsible parties did not know for several weeks.

    This could put the institution at risk.