NOTE: Licensing of journals continues to evolve; therefore, additions, deletions, and revisions to this list of benchmarks are reiterative.
As you review a license, you must consider if the library can abide by the terms and conditions as written. Legal definitions and clauses common to licenses are very nuanced and therefore require careful examination. Subsequently the following benchmarks have been identified to assist you in determining if specific terms and conditions are acceptable. Benchmarks are applied within the context of what are the library's rights as articulated by the licenser. Licensing terms and conditions can be characterized as either permissive or prohibitive or the licenser remains silent on a particular matter.
It is important to note that not all licensing terms and conditions are within the purview of the library, some fall within the purview of the campus contract administrator and/or the Minnesota Office of Attorney General (AGO).
When submitting revisions for consideration, revise the language to conform with the license being reviewed. For example, some licenses refer to the license as "License," whereas some licenses will refer to the license as "Agreement." If using the corresponding "Desired Language" for the benchmarks provided below, please revise the language to reflect the actual agreement under review.
Primary Benchmarks
Secondary Benchmarks
Tertiary Benchmarks
Review the journal license being mindful of the above benchmarks and complete a License Review Request or LRR.
Benchmark
Are ADA issues and concerns addressed in the license?
Rationale
By law the library is required to address ADA issues and concerns.
Desired Language
The Subscriber may transcribe any portion of the Licensed Material into braille or enlarged type for Authorized Users who are visually impaired.
Accompanying Desired Explanation
University and Library policies support the provision of accommodations to address the special needs of students with disabilities.
Benchmark
Is there any ambiguity in the definition provided for the word "site?"
Does the definition of "site" absolutely exclude distance education students at leased locations outside of a single geographic location?
Is there any provision in the license to declare distance education locations?
NOTE: In the license, be sensitive to the use of the words "sites" and "campuses" as it relates to physical sites, multi-site, and individual administrative units.
Rationale
It is important to note even though MSU, Mankato leases teaching facilities in a few different geographic locations, this does not entail registering users and providing the attendant administrative services from a separate site. Multi-site typically refers to multiple campuses which may or may not be independently administered but nevertheless include additional users. This delineation of multi-site enables vendors to understandably collect extra fees.
Desired Language
For the avoidance of doubt, the Institutional Subscriber is a single institution administered centrally as a single library on a single campus, although secure proxy access is provided to off-campus locations, including leased classrooms.
Accompanying Desired Explanation
NOTE: Please use informal language because the language itself conditions the response. The point is to use language to accomplish the desired outcome, so avoid vocabulary that is overly proper or 'high-sounding.' Most vendor contacts will respond more positively to a less formal and slightly deferential approach. For example, don't use phrases like 'teaching facilities" to describe distance education sites, as that will tend to sound more formal and official, thus more like additional "sites."
MSU, Mankato only has one campus. The reason we always request a correction to multi-site language when we see this kind of language is that we consider the language to be non-applicable to our distance education teaching sites--and actually, I suspect most universities simply ignore this kind of language for the purposes of their distance education sites. Our leased classrooms should not qualify as additional "sites" in the spirit those are offered by vendors, because they don't actually entail additional users registered or administered via a separate site. We have only on group of FTE students, only one campus, only one library. This language is typically written to enable vendors to collect fees where there actually are multiple campuses with added users (so the collection of extra fees makes sense).
[Consider revising to read as follows: MSU, Mankato only has one campus. The reason a correction is always requested when this kind of language is used is because it is considered to be non-applicable to our distance teaching sites--and actually, I suspect most universities simply ignore this kind of language for the purposes of their distance education sites. Our leased classrooms should not qualify as additional "sites" in the spirit intended by vendors, because leased classrooms don't actually include additional users being registered or administered from a separate site. We have only one group of FTE students, only one campus, and only one library. This language is typically written to enable vendors to understandably collect fees where there actually are multiple campuses with added users.]
OR (alternative desired language)
I don't think we're multi-site for licensing purposes, but you tell me, because it really comes down to the licensor's purpose in using the terms. MSU, Mankato only has one campus. However, we do also lease classrooms in two other cities to support distance education. I don't think these qualify as additional "sites" in the spirit these are usually offered by vendors, because they don't actually entail additional users registered or administered via a separate site. Looked at from a functional perspective, these sites don't entail any students which we could count separately. We have only one group of FTE students, only one campus, only one library. When we've discussed our sites with other vendors, they acknowledge that we are not multi-site in the sense defined in their licenses (...some licensors provide examples in their licensing guidance, and those examples always point to multi-campus systems, not sine universities like us.)
[Consider revising to read as follows: For licensing purposes, I don't believe we are considered to be a multi-site, but you tell me, because it really comes down to the intent behind using this term. MSU, Mankato has only one campus. We do lease classrooms in two other cities to support distance education, but I do not believe this qualifies as additional "sites" in the spirit intended by vendors. Considered from a functional perspective, leased classrooms don't include additional users being registered or administered from a separate site. We have only one group of FTE students, only one campus, and only one library. When we've discussed our sites with other vendors, they acknowledge we are not a multi-site in the sense defined in their licenses and the examples provided for guidance by some licensors point to multi-campus systems and not single universities like us.]
Benchmark
Does the license reference outdated provisions or fail to acknowledge common interlibrary loan practices? For example, Institutional Subscriber may fulfill interlibrary loan requests from other institutions via fax or paper document delivery under CONTU (National Commission on New Technological Uses of Copyright Works) guidelines. Redistribution of Subscribed Materials to non-authorized users in electronic or digital form is permitted via secure transmission using Ariel or its equivalent, whereby the electronic file is deleted immediately after printing.
Rationale
To accommodate or allow for the implementation of future technological innovations, it is best to ensure the terms of the license are platform agnostic. This is also true of emerging best practices within the profession. It is also important to note that it may not be possible to enforce a given provision since it is beyond the library's ability to monitor or control certain actions and/or functions.
Desired Language
Licensee may fulfill requests from other libraries, a practice commonly called Interlibrary Loan. Licensee agrees to fulfill such requests in accordance with Sections 107 and 108 of the U.S. Copyright Act. Requests may be fulfilled using secure electronic means.
Accompanying Desired Explanation
Library Interlibrary Loan rights are provided under U.S. Code Title 17, Section 108(d), https://www.law.cornell.edu/uscode/text/17/108. Any limitation of the law is unacceptable under any circumstances. The library employs OCLC Article Exchange for secure delivery of electronic articles whereby access to the article is limited and the article is deleted after a limited time period.
OR (alternative accompanying desired explanation)
(If there is a provision restricting interlibrary loan entirely by referring to the Copyright Clearance Center Get-It-Now service, the license must either be revised or rejected.)
Library interlibrary loan rights are provided under U.S. Code Title 17, Section 108(d), https://www.law.cornell.edu/uscode/text/17/108. Any restriction of this right under any circumstances is unacceptable. The library employs OCLC Article Exchange for secure delivery of electronic articles whereby access to the article is limited and the article is deleted after a limited time period.
OR (alternative accompanying desired explanation)
(If there is a requirement to delete files immediately after use ... )
We can't enforce this provision. We do provide ILL via secure transmission and the emails do limit re-accessing the article after use. Regardless of whether an ILL article is accessed or not, it is automatically deleted after a limited time period.
OR (alternative accompanying desired explanation)
(If a reference is made to third party materials, strike from the license)
This clause is impossible to enforce because we can't accept any third-party terms and conditions that have not been reviewed and executed.
OR (alternative accompany desired explanation)
(If there is limitation of ILL rights to paper and fax only ...)
Standard library practice is to provide ILL via secure electronic means. Restricting ILL service to paper and fax imposes inefficiencies and undue burden on library staff.
Benchmark
How are users defined or identified?
Are there provisions for current contractors or visiting faculty doing work or conducting research for the Licensee?
Is there a provision for faculty that does not specifically exclude emeriti?
Is there a reference to employee as opposed to the desired terminology "faculty?" If a reference is made to employees, strike from the license and substitute "faculty" if faculty are not already referenced. (This then includes emeriti.)
Rationale
Students, faculty, and staff should be designated as authorized users. Consider including other individuals authorized to access the secure network such as current contractors, visiting faculty doing work or conducting research for the licensee. If emeritus faculty are not referenced in the license agreement, this is not an issue. From a legal standpoint, emeritus faculty are considered current faculty.
Desired Language
[to be developed]
Accompanying Desired Explanation
[to be developed]
Benchmark
Does the license agreement make mention of PCA rights?
Rationale
If there is no reference to PCA rights in the license, inquire into the possibility of obtaining such rights.
Desired Language
Additionally, does the Licensor provide post-cancellation access for born-digital issues of the journal(s) published during the term of the subscription? If so, can we add that statement to the license.
OR (alternative desired langauge)
When Licensed Material includes ..., [publisher name] grants to the Subscriber, a non-exclusive, royalty-free license to permit Authorized Users to access in perpetuity those [publisher name] journal articles included in the Licensed Material which are published during the Subscription Term. The means by which the Subscriber shall have such perpetual access shall be in a manner determined by [publisher name] but shall be in electronic form. Where any Licensed Material for which perpetual access is granted is sold or where [publisher name] no longer retains the rights to such material, [publisher name] shall use its reasonable efforts to ensure that the purchaser or subsequent holder of the rights (as the case may be) will provide ongoing access to the affected articles. Perpetual rights shall not extend to any Licensed Material that is not a [publisher name] journal or any portion of journal material that has been expunged from the archive, removed pursuant to Intellectual Property Rights, damaged or sold. Should any back issues (or archival content) of any journal be accessible to Authorized Users during the Term, these shall not be part of the Subscriber's perpetual access rights.
Accompanying Desired Explanation
[to be developed]
Benchmark
Do the license terms and conditions specify a specific start and ending date for the subscription?
NOTE: Use or refer to content coverage dates as opposed to access dates when specifying when the subscription is to begin.
Rationale
As per state law, a license must have a starting and ending date and not one where a start date is specified but lacks an ending date. In practice, the library can specify the terms of the license can continue until the subscription is renewed or the order is completed.
Desired Language
The license continues for so long as the licensee has a current institutional subscription for the licensed materials. The total term of this License shall not exceed five (5) years.
OR (alternative desired language)
This license shall commence on the date signed and will remain in effect so long as the licensee maintains a current online subscription to the licensed materials. This license will terminate if and when the subscription lapses. The total term of this license shall not exceed five (5) years.
OR (alternative desired language)
The term of this license is for one (1) year, beginning [date], and may be renewed for additional one-year terms upon payment of the renewal fee. The total term of this license shall not exceed five (5) years.
Accompanying Desired Explanation
[to be developed]
