Example licensing principles
Principle 1
No licence or licence term will be accepted where it explicitly or implicitly seeks or has the effect of undermining the role of the library as expressed through the legal framework including soft law including (but not limited to) the Copyright, Designs and Patents Act 1988 and regulations made thereunder as amended and revised from time to time.
Sample clause: For the avoidance of doubt, no term in this licence will have the effect of altering, undermining or changing any of the functions or roles carried out by the library as expressed through legislation and industry agreements. To the extent that any term or part of a term does have this effect, whether intended or not, it shall be deemed to be null and void.
Explanation: Under UK law, contractual clauses can undermine the exceptions to copyright and therefore compromise the ability of libraries to benefit fully from fair dealing and library privilege. Whilst individual library records are unlikely to attract copyright protection, databases of records are likely to attract both copyright and database rights. In addition, library records may be associated with other content and activities, for which the exceptions are vital. Therefore, by including this clause and clause 2 (below) in any negotiations and contracts with third parties, this will help ensure that libraries are not restricted from activities that the law would currently or in the future facilitate whether directly or directly related to the use, supply and making available of these records.
Principle 2
No licence shall undermine fair dealing or library privilege and the ability of the library to benefit from them.
Sample clause: Any term in this agreement that purports to alter or negate the fair dealing provisions and/or the library privilege sections of the Copyright Designs and Patents 1988 and The Copyright and Rights in Databases Regulations 1997 as amended from time to time and any other relevant legislation or soft law shall be deemed null and void.
Explanation: As for Principle 1.
Principle 3
Licences shall be non-exclusive.
Sample clause: This licence and the obligations and undertakings contained herein are non-exclusive. The Licensor is free to make the subject matter of the licence available to third parties.
Explanation: Using this clause will help ensure that the terms of any licences issued are not restricted to any one party. Using this term will provide the freedom for libraries to supply records to multiple sources, as well as receive records under similar terms to other recipients.
Perpetual permission shall be granted in the licence for the non commercial use, supply and making available either the original, edited or manipulated bibliographic records.
Sample clause: The Licensor grants to the Licensee a non-exclusive irrevocable licence to do the following with the catalogue records either in their original form or as edited, manipulated, joined with other bibliographic records or any other form of alteration and/or combination of the records to the extent that this is done for a non-commercial purpose: copy, issue copies to the public, rent or lend copies to the public, perform, show or play copies in public, communicate copies to the public, extract and re-use the whole or a substantial part all within the meaning of the Copyright Designs and Patents 1988 and The Copyright and Rights in Databases Regulations 1997 as amended from time to time.
Explanation: This clause will ensure that permission to use the records is granted without a time limitation. It will also ensure that the full range of non-commercial uses to which a library may use the records is covered, including internal use, external supply and making records available, for example, over the internet. The inclusion of this clause will not permit commercial use of the records, for which separate agreements will need to be negotiated.
The Library shall be permitted to undertake all activities with the bibliographic records with the exception of supplying them to third parties for commercial return.
Sample clause: The licensee is hereby permitted to undertake all activities and enter into relationships with third parties with regard to the supply of bibliographic records with the exception of commercial supply to third parties as a result of which the licensee receives direct financial benefit.
Explanation: A debate exists amongst legal commentators as to the meaning of "commercial" and "non-commercial". As the terms have not as yet been defined in law, so uncertainly exists as to the scope of the meaning. Consequently it is important that the licensee (the library) is not constrained in downstream supply of the bibliographic records except where that supply is overtly commercial and as such could result in significant harm to the licensor's business.