Licensee Performance Obligations

The licensee’s core obligation under the agreement is to use digital information subject to the terms contained in the agreement. There may be additional specific obligations on libraries, including informing authorized users of the terms of the license agreement and, more specifically, the uses of the information are permitted and prohibited. These clauses should be considered carefully. Libraries should be wary of clauses which impose onerous responsibilities to monitor usage of the materials. While librarians should do what they can to inform users of restrictions on use of the authorized materials and stop unauthorized use when it is discovered, they should not obligate themselves to police their users or promise to take remedial action against unauthorized use that is beyond their authority.

Other licensee obligations will depend on the means by which the library or its users gain access to the licensed materials. Where access is through passwords and/or usernames, the licensor will often request that the library inform its users of their obligation not to divulge the passwords to unauthorized users and that the library itself maintain the confidentiality of the passwords it uses to access the materials. Again, these provisions should be analyzed carefully to ensure that the library does not undertake unreasonable monitoring or policing responsibilities.

Example Clauses

Licensee Performance Obligations: Example Clauses

1. Provision of Notice of License Terms to Authorized Users. Licensee shall make reasonable efforts to provide Authorized Users with appropriate notice of the terms and conditions under which access to the Licensed Materials is granted under this Agreement including, in particular, any limitations on access or use of the Licensed Materials as set forth in this Agreement.
2. Protection from Unauthorized Use. Licensee shall use reasonable efforts to inform Authorized Users of the restrictions on use of the Licensed Materials. In the event of any unauthorized use of the Licensed Materials by an Authorized User, (a) Licensor may terminate such Authorized User’s access to the Licensed Materials, (b) Licensor may terminate the access of the Internet Protocol (“IP”) address(es) from which such unauthorized use occurred, and/or (c) Licensee may terminate such Authorized User’s access to the Licensed Materials upon Licensor’s request. Licensor shall take none of the steps described in this paragraph without first providing reasonable notice to Licensee (in no event less than [time period]) and cooperating with the Licensee to avoid recurrence of any unauthorized use.

3. Maintaining Confidentiality of Access Passwords. Where access to the Licensed Materials is to be controlled by use of passwords, Licensee shall issue log-on identification numbers and passwords to each Authorized User and use reasonable efforts to ensure that Authorized Users do not divulge their numbers and passwords to any third party. Licensee shall also maintain the confidentiality of any institutional passwords provided by Licensor.

Commentary: These are common licensee performance obligations.Example 1 requires licensees to take reasonable steps to notify authorized users of any conditions or restrictions on use of the licensed materials. Licensors request this because authorized users are not parties to the license agreement, and thus may not be aware of permitted or prohibited uses.

Example 2 goes a bit further than Example 1. In addition to informing users of limitations on use of the licensed materials, it sets forth the steps to be taken by the parties when actual unauthorized use is discovered. It is extremely important that libraries not undertake onerous responsibilities to police users and uses of digital information. While libraries should do what they can to prevent improper use, and should take whatever steps within their power to remedy known abuses, libraries generally should not undertake responsibility to monitor their patrons use or promise to take remedial actions that are outside their authority.

In those cases where access to the licensed materials is governed by passwords, libraries may be asked to inform their users of the obligation not to divulge the password to unauthorized users. See Access by and Authentication of Authorized Users. Example 3 also requires the library to maintain the confidentiality of any passwords needed by the library licensee to gain access to the licensed materials. See Delivery/Access of Licensed Materials to Licensee.

Last updated: April 25, 2012