Electronic Resources Licensing

Terms of access to many electronic resources, at least those we pay for, are dictated in licenses. Here we outline the workflow and principles of electronic resources licensing here at UMass Amherst Libraries.

1. Upon ordering a new e-journal, package or database, check with the vendor about whether a license is required. If we're purchasing or subscribing to a product via NERL, they will handle the licensing for us.
2. If new resource requires a license and we don't have one on file with the publisher, request one for review prior to confirming order. (It's most convenient to get an electronic copy of the license which you can edit.) If we do have a pre-existing license with the publisher, an amendment may be required.
3. Check to see if publisher is a registered participant in SERU - the Shared Electronic Resource Understanding. If publisher is registered with SERU, follow SERU procedures - see below.
4. An electronic resources librarian must review the publisher's/vendor's terms and conditions, looking for their adherence to NERL's Licensing Principles, as well as required provisions of UMass licenses - see below.
5. If any terms in the license are problematic (there's usually something), the librarian requests modifications from the publisher, making suggested changes either in the license document itself or in email. Negotiations ensue until the librarian is satisfied with the terms.
6. The license must then be reviewed by university counsel. The librarian will submit a form with a copy of the license to the University Counsel legal team (https://www.umassp.edu/general-counsel/legal-advice-request-form) with basic information about the product and a terms modified as a result of previous negotiations. Adding a “response requested by” date may help move the process along.
7. University counsel will either respond with recommendations for further changes, note where a business decision may be made, or deem the license legally acceptable. The librarian will then request further changes with the publisher, or forward it to the Associate Director for Collections Services to make a decision about the acceptability of the business risk.
8. If and when the license is deemed legally acceptable or of an acceptable business risk, the librarian should request a clean copy from the publisher. Send this copy, with the message of approval from the university counsel, to Lynn Picard (lapicard@provost.umass.edu) in Associate Provost Deborah Gould's office with a request that he sign two copies and return them to the library.
9. The librarian returns one fully executed copy to the publisher. Upon receipt of the full-executed license - signed by both parties - the librarian files it under the publisher in our paper files.
10. This completes the licensing process. Invoicing and activation of the product may occur when the license is signed by the publisher.

• Signatures - Each license must be reviewed by an electronic resources librarian and the university counsel, and a printed copy must by signed by both parties to the agreement. The UMass Associate Treasurer is the only person designated to sign contracts on behalf of the university. Clickthrough licenses are unacceptable.
• UMass Indemnification - UMass cannot legally indemnify another party. Per 12/23/04 e-mail from Brian Burke: “The University is an agency of the Commonwealth of Massachusetts, and is prohibited by Article 62 of the Massachusetts Constitution from pledging the credit of the commonwealth. Case law and Attorney General opinion indicates that a promise to indemnify a private party to a contract is such a pledge. The contractor should not rely on it, and whoever signs on behalf of the University does so without authority.”
• Publisher Indemnification - UMass requires that the publisher provides a warranty of non-infringement and protects us with an indemnification against claims of copyright infringement.
• License Confidentiality - UMass cannot agree to keep an agreement confidential. As an agency of the Commonwealth of Massachusetts it is subject to its Public Records Law.
• Privacy and Confidentiality - UMass cannot disclose personally identifiable information to third party without notifying user under terms of FERPA and Massachusetts Fair Information Practices Act. Otherwise, cannot provide personally identifiable information unless by order of court.
• Governing Law and Jurisdiction - This must be the Commonwealth of Massachusetts. University will not agree to hire representation in another state. If publisher won't accept this, the license can remain silent on this point.
• Arbitration - UMass attorneys will not accept arbitration as a means of settling disputes.

Desirable terms for all licenses are outlined in:

• California Digital Library License Agreement Checklist
• California Digital Library Model License
• NERL Licensing Principles
• LibLicense Model License.

UMass Amherst registered to participate in SERU in March, 2009. If a publisher is also a registrant with SERU and both parties agree to observe those principles, this should be noted on the invoice:

• In the absence of a separate license agreement, University of Massachusetts Amherst Libraries follows the SERU guidelines, as published at the NISO SERU website: http://www.niso.org/workrooms/seru/.

• Accessibility - [Licensor] acknowledges and warrants that their Licensed Products, Applications and Services are currently in compliance and during the Term of this Contract shall remain in compliance with all applicable Massachusetts and Federal disabilities laws and regulations, including without limitation the accessibility requirements Massachusetts General Laws c. 151B and Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d), its implementing regulations set forth at Title 36, Code of Federal Regulations, Part 1194, and the Commonwealth of Massachusetts Enterprise Accessibility Standards and Web Accessibility Standards. [Licensor] agrees to promptly respond to, resolve and remediate any complaint regarding accessibility of its Licensed Products or services in a timely manner and provide an updated version to Licensee at no cost. Licensee reserves the right to request, from [Licensor], a timeline by which accessibility standards will be incorporated into the Licensed Products, Applications and Services and [Licensor] shall provide such a timeline within a commercially reasonable duration of time. [Licensor] further agrees to indemnify and hold harmless Licensee from any claims arising out of its failure to comply with the requirements of this section. Failure to comply with these requirements shall constitute a material breach of this Contract and shall be grounds for termination of this Contract by Licensee upon written notice to [Licensor]. These warranties will not apply if the Licensed Products, Applications, and Services are: (i) modified or altered in any way (other than by [Licensor] or with the specific prior written consent of [Licensor]); (ii) not updated with the corrections, patches, fixes, updates, improvements or enhancements that [Licensor] may make available from time to time; (iii) used in any manner or for any purpose not specifically permitted by this Contract.
• Warranty - Licensor represents and warrants that it has the right and authority to make the licensed materials available pursuant to these terms and conditions, and that providing the licensed materials to Licensee does not infringe upon any copyright, patent, trade secret, or other proprietary right of any third party.
• Publisher Indemnification - Licensor will indemnify and defend at its expense, any action brought against Licensee based on a claim that materials furnished hereunder and used within the scope of this Agreement infringe any patent, copyright, or other rights of third parties, and Licensor will pay any costs, damages, and attorney’s fees awarded against Licensee provided Licensee notifies Licensor promptly and in writing of such action or claim and permits Licensor to fully participate in the defense thereof and to agree to any settlement. Should the materials furnished under this Agreement become, or in the Licensor’s opinion be likely to become, the subject of a claim for infringement, Licensor may authorize the continued use, replacement, removal or modification of such data to make it non-infringing.

— Primary contact: Christine Turner