Chapter 2 - Creating Your Strategy One Step at a Time

Needs-Based Licensing

You should always know what you want to accomplish before beginning any new licence negotiation or drafting. To get you started in filling up your blank paper or screen, below is a list of questions or points you should consider. They should be seen as a way to guide your discussions with others in your museum so you are directed in your consultations. Consult with your colleagues in responding to these questions and make sure that your points include the many different perspectives of people in your museum. Negotiating a licence is a group effort within your institution and will have implications in various parts of your institution. Some people to be consulted are: museum director, senior management, museum board, curators, legal counsel, librarians, archivists, education department, purchasing department, marketing department, publications department, and your information systems and technology office.

If you are a licensee, it is a good idea to obtain feedback from your staff and researchers as to how the licensed material is to be used, including the format needed to make it most accessible and useable. One key point is whether the content will be used internally, for example for research purposes, or will be used in a manner that will allow its re-use. Re-use may include your museum licensing images for posting on a blog or on Facebook; such images may be “used” in copyright terms by the public, as-is, adapted, or in a collaborative project. You must be aware of all of these and other issues when licensing or posting content online, and verify whether or not you have the right to do so, or have the licences with the content owners that permit such re-uses.

It is best for one person to co-ordinate all of this internal consulting in order to ensure an organized approach to your licences. It is also ideal for one person to be the lead negotiator for purposes of consistency.

The points below are the key usage, practical and strategic points you will inevitably face when signing a licence as a licensor and licensee. On many issues, your museum, from either a licensor or a licensee perspective, has to ask itself the same questions in determining its licensing agreement strategy. On some issues, the questions for a licensor or licensee do differ. So start thinking about the various issues and put aside planning time to consider and formulate your responses. You will find that the time spent before you even have a licence will provide your museum with a solid basis for consistent licensing agreements that meet your needs in the short and longer term.

You may also find it helpful to continually be in the process of creating and amending a Licensing Agreement Policy which will refine the questions below and add other key questions. Licensing agreement policies are further discussed below.

Digital Licensing Agreement Strategy Issues

The issues raised below are discussed in great detail in subsequent chapters of this book.

Content Issues

Why do you want to license this content? (On the licensor side, you may want to monetize certain content, or license it to promote your museum online. On the licensee side, you may want to license the content of others for use in museum research.)

What are the competitive products to the one you are licensing; and would you be interested in licensing these other ones if you cannot agree on suitable terms and conditions for the initial content you want to license? (As a licensor, you want to be aware of the content you are up against so you know how to market and price your own. As a licensee, you want to be aware of the alternative products so you can determine the value of the one at hand in comparison to similar products.)

What content are you licensing? Include title, ISBN or ISSN, and a brief description of the content. Do you have or require a sample of the content? (The more accurately you can describe the content, the less confusion there will be in the future when identifying that content.)

Do you already subscribe to this same product in print? If so, are there any financial or other advantages to be gained by this? (For example, this may apply to a text publication.) (This is a licensee question.)

In what format will the electronic content be provided? On DVD, through the content owner's server, via an intranet? (As a licensee, you need to know how you will be able to access that content. As a licensor, you have to consider additional choices such a free Web site or social networking venues.)

How often will there be updates to the electronic material? How will these updates be delivered? (Your museum wants the most up-to-date content and wants to be able to provide such content to others.)

Does the licensee require any archival rights after the termination of the licence? (As a licensee, you may already have the print version of the content, but if not, you may need to have ongoing access to a digital database, for example, after the expiration of the licence.)

"User" Issues

Who will be using this content? For example, will the users be library staff, other employees, patrons, members, faculty, students, alumni, visiting professors, or the public? How about museum staff? Will the use go beyond a closed/private network? (Scope of use may relate to pricing from a licensor or a licensee perspective.)

How will the content be used? Will it be printed, downloaded, stored electronically, emailed to others, etc.?

What uses will be made of this content? Internal, external, Web site, intranet, social networking sites, access through on-premises computers, included in an e-book or e-publication?

What sort of access is necessary? From a single machine, from a resource centre in a museum, library or educational institution, remote access on campus (or from a different corporate location), in the state/province, country or from other countries?

How many people must be able to access the content at any one time? How many simultaneous users need to access the content at the same time?

Licensee Issues

Will authentication of authorized users be necessary? Is the licensee easily and inexpensively able to do this? Will the content owner set this up?

What mechanisms does the licensee have in place to ensure user confidentiality?

If the content is to be used by your museum’s library, will the library have to make a copy for interlibrary loan? Email interlibrary loan or by print?

How can the licensee ensure the content is used according to the terms and conditions of the licence? Keep in mind that it will probably be impossible to police the use of the content by those accessing the content from the licensee's premises.

What is the licensee's budget for this content? A range may be more appropriate than an exact dollar amount. You may also want to break up the costs into setup cost, storage cost, maintenance cost, etc. Take into account your budget, and perhaps lawyers’ fees, related to licence negotiations.

Is any additional hardware or software required in order to be able to access the content, and who would be responsible for related additional costs for these?

What is your preference for payment schemes? Flat rate, pay-per-use, subscription basis, etc.

Will the content owner provide the museum with documentation and support for using the content?

Does the content owner warrant how it will address downtime when access to the content will not be possible? Or if some of the content is removed from the database?

Licensor Issues

Do you own the content outright? (If so, then your museum may use the content in any manner it wishes.)

Do you have a partial assignment of rights or a licence that allows certain re-licensing of the content? What are you permitted to re-license? Is your permission limited by media, time or geographical location? (If you own some rights, you may only need to obtain partial rights in your licence agreement. For example, you may have the right to digitally archive images that physically exist in your museum, but you need to obtain the rights to post those same images in MySpace or publish them in an e-book.)

Do you have a waiver of moral rights and is it necessary considering your particular situation in licensing the content?

Licence Issues

What duration of the licence would work best for you?

Would you want the licence to automatically renew?

Under what circumstances would you like to be able to terminate the licence?

What state/province and country's law should govern the licence?

Are there any special circumstances you need to include in the licence concerning this content? (for example, required clauses mandated by law or by internal policies.)

Administrative Issues

Who will be negotiating the licence? Or will it be a team of negotiators (in which case, who is your primary negotiator)? (Did you do your research on the negotiators on the other side?)

Who will be responsible for ensuring the terms and conditions in the licence agreement are met during the duration of the licence?

How will you keep track of this licence and manage your other licences?

Who will sign the licence (e.g. legal counsel, accounting representative, museum director or other person)?

Reviewing the Licence

Once you are comfortable in understanding what is being offered to you, you should make notes comparing your initial blank page notes and what is set out in the licence. Identify sections of the licence that work for you, and ones that require editing. Make a list of items that are missing from the licence which you would like to see added to it. These additions may later fit into existing sections of the agreement, or may require new sections to be added to the licence. Be organized in your approach to reviewing the licence.

Considering a Digital Licensing Agreement Policy

A Digital Licensing Agreement Policy can be a valuable tool for digital collections management. It can make licensing much easier in your institution by providing a more consistent licensing process. A good policy ensures that your museum has examined relevant licensing issues before entering into any new licensing arrangements. It also ensures that one person's memory is not be at the root of your museum's licensing strategy and acquisition of, or licensing of, your electronic content. Your policy is also a summary of your museum’s approved approach to licensing and can accelerate the licensing process and make it easier for all. Your licensing agreement policy is a written document that is the basis for all licences entered into by your museum.

Your Digital Licensing Agreement Policy may be a stand-along document or it may be part of other museum policies such as your overall Intellectual Property Policy.

Developing a Digital Licensing Agreement Policy

Your Digital Licensing Agreement Policy should set out the minimum requirements in any licence agreements you enter into. When licensing content, you will have to decide based on the circumstances what is the appropriate type of arrangement and how you should set this out in your agreement. At one extreme is a simple document identifying the parties, the works being used, the purpose of their use, length of use, payment, the rights being licensed, a warranty that states the works are in fact owned by the party who is licensing them, and signatures of both parties. At the other extreme may be a 20-page agreement full of legal terminology. In any licensing situation, you must examine your own perspectives and goals, as well as take into account the other party's, and tailor your negotiations and agreements to match your particular circumstances.

Ask Questions

When developing your Digital Licensing Agreement Policy, you may want to start with addressing the minimum requirements and issues of a basic licence agreement:

• Who are the parties to the agreement
• What content is being licensed
• Who owns the original content
• If the museum is digitizing the content, who owns the digital version of the content
• How will the content be used
• How long will the content be used
• In what format(s) will the content be used
• How much will the content cost
• What rights are being licensed (i.e., what uses will be made of the content)
• Warranties from the content provider

It may be easiest to address these complex issues by responding to the questions set out above in the Licence Issues section of this chapter.

Review Existing Licences

Once you have started with the basic requirements and issues of a licence agreement, you may then wish to examine various licences to which you have entered. Review past licences and create a list of the consistent points from licence to licence. Then consider tracking all the terms and conditions that vary from licence to licence. It may be helpful to examine what clauses you liked and did not like in other agreements. It is also worth noting clauses you found were not workable once a licence was signed, or clauses that limited your access to the content in any manner. You might include in your Policy circumstances under which you need to deviate from the Policy's minimum requirements, as well as provide a list of circumstances in which you are flexible and may be open to various negotiable clauses.

A helpful part of your Digital Licensing Agreement Policy will set out how new licences or proposed licence arrangements are reviewed and approved within your institution. It should also set out who is involved in which stage(s) of the licensing process.

A Digital Licensing Agreement Policy is not developed overnight. It takes time to create, and may require review or amendment after new licences are signed, or when technology, law or corporate policies change. Amendments to the Policy may be required on a regular basis, and therefore be subject to a regular (e.g. quarterly or yearly) review. If you do not have continual access to a copyright lawyer to help you prepare and update your Policy, it may be a good idea to have a lawyer review it periodically both for legal issues and for licensing and negotiation strategies. Also, you may wish to set up a review committee to periodically review and suggest amendments to your Digital Licensing Agreement Policy.

The following is an example of a draft digital licensing agreement policy for a fictional museum, the Arts and Crafts Museum. This is a very simple policy and is a good starting point. Yours, however, may be more detailed especially after it has been revised a number of times to take into account new licences to which you have entered. Yours may also include the list of questions set out in the section in this chapter under Digital Licensing Strategy Issues. These questions are a helpful checklist when reviewing any new licences.