Chapter 8 — Time to License
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Do not be discouraged by lack of immediate success. Bernard Shaw flowered at 17 but nobody smelled him until he was 40.
Robertson Davies, Canadian author
You should now understand the general principles of licensing as well as the various clauses you may include in your licences, and be considering the development of your own museum’s licensing agreement strategy. When licensing content, you will have to decide vis-à-vis each licence, based on the particular circumstances, what is the appropriate type of arrangement and how you should set this out in your agreement. Remember to keep your Licensing Agreement Policy close at hand and to refer to it as frequently as necessary. While developing your strategy, examine all licences you come across, as you can also learn from bad ones or from clauses that are poorly written. Do not assume that you need to negotiate each clause in every licence; see what works for you, then discuss any specific requirement with the content owner so as to best meet your needs.
The Length of your Licence
Early on in the licensing process, you should start considering the appropriate length of your licence. At one extreme is a simple one page document identifying the parties, the content being used, the purpose of the use, length of use, payment, the rights being licensed, a warranty that 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 twenty-page agreement full of legal terminology.
Put your effort into negotiating when it is most needed. When you are thinking about the time and energy you will give to each licence, look at the cost-benefits of doing so. Can you use a simple one-page licence for a short time frame or to license a smaller piece of content? Or, does the use of the licensed content require full-scale negotiations of all clauses and drafting of an extensive licence covering multiple years?
Lengthier agreements make the negotiating and/or signing process more time consuming and costly, and are more difficult to complete. In addition, a twenty-page contract landing on your desk is fairly intimidating, and given the opportunity to license an alternative electronic product with a simple licence, most of us would seize that chance. Also, a signed twenty-page agreement may mean more time and money spent interpreting and complying with the terms and conditions in the agreement.
It is important, however, that key issues are addressed in the agreement and that brevity does not mean an omission of important clauses. One way to keep an agreement short is to set out the agreement as simply as possible, without specific details, in a "main" agreement, and then to append details such as licence fees or a payment schedule, as separate attachments to the main agreement. This approach is advantageous to content owners as they may then have one standard licence agreement, with any changes or additions for each specific licence dealt with in an appendix. This would lessen the administrative burden of content owners who over time may have different licence agreements with different licensees. For similar reasons, content owners may find this helpful.
Where possible, it is important to encourage and use licences written in plain non-legal language and to be "people-friendly." One example of plain language is to avoid terms like "Licensor" and "Licensee", and instead to simply use the names of the two parties such as Moose Museum and Peter Publisher.
Language considerations should also include sensitivity to the other party, and the tone you use may help reflect this attitude.
A Written Licence
Put your licence in writing. Never base your licensing arrangements on assumptions, casual email correspondence or conversations, or even on oral agreements.
The importance of having a written agreement cannot be stressed enough. Although it is not legally mandatory in all situations, it will provide you with a summary of your agreement concerning how the electronic content may be used. It will also be of great benefit when an issue arises about the conditions of licensing the content, providing you with a written document to consult. It will clearly state the beginning and termination of the licensing arrangement, as well as the fees involved. Also, as personnel change all the time, the written agreement will be a valuable record of the licensing arrangement. For example, a content owner and a museum negotiate a licence, and the museum's negotiator leaves the museum; the terms and conditions of the licence may be lost if they are not reduced to writing.
When you negotiate various changes to a licence agreement, sometimes it is necessary to correct these changes on your word processor and to work with a clean copy of the licence. When doing this, make sure both parties are aware that changes have been made to the licence. In other circumstances, where the changes are minor, you may strike and/or hand-write the negotiated changes, then each party should initial each change and/or each page of the licence when they sign it.
Your Particular Circumstances
Throughout this book, you have been reminded that each licence may be unique for each type of licensed content. Thus, you must always keep in mind your particular circumstances in negotiating a licence. View every licensed content with a fresh eye with respect to the appropriate terms and conditions for that particular content.
Museums are in a unique position in that they are both licensors and licensees, depending upon the circumstances. As such, you may be more sensitive than others as to the needs of the other party. Keep this special knowledge in your mind when negotiating and try to make the other party happy with the arrangements you are proposing.
Consistent Terms and Language
Notwithstanding the need to meet your particular circumstances, you will want to balance in the fact that it would be easiest for you to use consistent terms and conditions in each licence, and have similar definitions of, for example, authorized uses and users. This would also make licence compliance much easier further down the road. It may make interface design easier in those cases where your museum has a Web page and is providing access to the licensed content from its page or through on-premise computers or a proxy server. It is more difficult if you are forced to divide up the users of the licensed content into different classes of users and have to keep detailed records of who is using the content when.
Managing Multiple Licences
Consider creating a simple database. You may divide the database into two parts. One for licences signed as a licensor, and one for licences signed as the licensee.
In your database, information for each licence should include both parties' names, email addresses and telephone numbers, a description of the licensed content, what uses are permitted, who are the authorized users, from what sites may the content be accessed, when the licence expires and whether the licence is automatically renewable. Of course, there are many more items you may include in the database, and the Licence Agreement Checklist in Appendix A provides valuable headings for any such database. Take this opportunity to centralize your licences – include licences for your entire organization, those signed by specific departments or libraries (within a larger organization) and those in which you are part of a consortium. Computer software for a standard database may meet your needs for managing your licences, though you may prefer customized computer software to help you do so.
Museums have several roles in informing their staff about licensing. It is essential to provide all staff members with general information on basic contract law and what licensing means within the museum context. Also essential is establishing who is legally authorized to sign agreements/licences on behalf of the museum. Agreements include allowing an organization to use a museum’s image on the cover of their annual report; an agreement is also relevant when posting images on the museum’s flickr account. When informing staff on the matter, the basic notion that a licence does not mean transfer of ownership must be emphasized. A licence is permission to use content (whether you are obtaining or giving permission), according to the terms and conditions to which the two parties have agreed.
Note that when you sign an agreement to use the content of others, one of the terms and conditions may require you to establish policies aimed at making the permitted uses of the licensed content known to the users. Whether or not you are obligated to do so, once you sign a licence, an important task is to ensure that those who have access to the content are aware of its conditions of use, in other words, the terms and conditions set out in the licence.
Awareness can take a variety of forms, from a simple list of “do’s and don’t’s” on a screen prior to viewing the content to an online tutorial on licence agreements or periodic in-person seminars on licensing digital content. Different formats may be applicable, depending on the situation and the people accessing the content. Smaller organizations may resort to professional associations that offer courses and sessions on copyright and licensing issues.
Awareness will help protect your museum from violating the terms and conditions in your licences. Also, employees will be more comfortable when accessing the licensed content if they are aware of the uses which are allowed. Awareness may also help “market” any licensed content and attract a larger audience for it, thus increasing the value of that content to your museum.
Whenever you turn to your awareness initiatives, remember that you already have a document which could serve as the basis – the licence itself. A written Digital Licensing Agreement Policy and a database of licences are also helpful educational documents. In addition to these specific resources on licensing, consider creating a reference shelf on general resources in that regard. This could be a virtual and/or physical place where those in your museum can quickly and easily have access to reliable general resources and in-depth information on various aspects of licensing. You may also add information and perhaps Copyright Qs & As on licensing in general on your Intranet.
Here are some things to consider when organizing licensing awareness in your museum:
- evaluating the need for awareness and the type of awareness or professional development measure most likely to be valuable to your employees and others;
- taking into account your budget for awareness;
- timing for awareness (for example, stay away from year end as other issues take priority then);
- determining the audience for your awareness (does one seminar fit all, or do you need separate training for museum staff, researchers, and the public?);
- nature of training (in-person, online, blended learning, self-paced learning?);
- determining the scope of awareness (from simple copyright issues to licensing content in general or the specifics of some of your licence agreements);
- evaluating whether one session fits all needs, or whether you need multiple sessions;
- searching for the right instructor (internal person such as a person responsible for rights and reproduction, lawyer, external instructor?);
- developing content as course material (is this necessary, or is it more appropriate to discuss your Digital Licensing Agreement Policy or one of your licences?)
In determining what makes sense for you, keep in mind the goal of awareness – to make sure that those who use your licensed content are aware of the legal, financial and ethical considerations as specified in the terms and conditions of your licence agreements. Also, consider involving as many museum employees as possible in your copyright awareness strategies.
Changing Technology and Needs
It is possible and likely that the licence agreement you enter into today will not be as effective tomorrow. Although a licence agreement may meet all of your current technological needs when signed, by the very next day, your technological needs may change and you may require different or new uses of the licensed content, or a modification of certain terms and conditions in order to be able to effectively use the licensed content. Modifications may need to be made to the agreement for economic, technical, legal or other reasons.
Some ways to address rapidly and constantly changing technology have been discussed throughout this book. These suggestions include a short term licence agreement, or a short term agreement with automatic renewals. An amendment clause is important as it provides you with a mechanism to easily make changes to the agreement. You may want to enter into a trial licence period to provide both the content owner and licensee an opportunity to work out problems, discover and solve specific issues, or to seek technological solutions, prior to a longer term commitment to the licence. Customer support may be helpful as it can give licensees an opportunity to understand the licence agreement from the perspective of the content owner. To go further, customer support could report to the content owner and/or licensee any issues/problems that require discussion and/or inclusion in subsequent licence agreements. Feedback forms could be placed on the licensee's site for this purpose. Lastly, a reduction of the licence fee may be appropriate in certain circumstances. For example, should the content owner have to remove some of the licensed content specified in the licence, then the licensee should be entitled to a refund on a pro rata basis of its licence fee. Also, should the licensed content not be available for a lengthy amount of time, the licensee may be entitled to some reduction or refund of the licence fee.
Frustration and Patience
Along with licence agreements often comes frustration. As a licensee, there is frustration in the fact that licensees like museums now have to enter into legal agreements to access content for their use. There is frustration that access to lawyers is not always available or immediate, and that it can be costly. There is frustration that technology outdates agreements that seem perfectly fine at the time of signing them. There is frustration that electronic uses of content must be monitored or regulated to some degree whereas staff and researchers can more freely roam licensors' print bookshelves without the same restrictions. There is frustration that the party with whom you are negotiating a licence knows less than you, and actually makes the negotiating process more difficult. Further, there is the cost and time and new knowledge in negotiating a licence which does not exist when acquiring print materials. Additionally, there is frustration in informing museum staff that “simple” acts such as posting an image on flickr or a video on YouTube have a number of licensing implications that must be examined beforehand.
Unfortunately, there is no magic answer to overcoming these and other frustrations. Yes, time will probably ease some frustrations (though could possibly raise others!) It is best to enter into any licence negotiations with an open mind, lots of patience, and hopefully at the end of the day, you will acquire the content and licence that best meets your needs.
Licensing is a part of life and day-to-day duties for museums. The licensing knowledge, skills and roles of those in your museum are rapidly growing. Knowing your goals, understanding clauses that appear in licences, and entering into the negotiation process with a flexible view and authority from your museum will result in licences that meet your needs. Effective communication throughout the process with those in your own museum as well as with the other party will ensure a smooth and effective process.
Licensing content for digital media is still relatively new to everyone. While trends are beginning to emerge, digital licensing is still in its infancy. Although the lack of standardization can be frustrating, it also allows for creativity and experimentation, as well as time to reflect upon the needs of content owners and licensees. Consideration of the issues and clauses discussed in this book and on-going discussions with other content owners, licensees and lawyers negotiating licences will help develop a coherent, consistent approach in your licensing agreement strategies.
There is no one right way. The best agreement is the one that meets your needs and builds a strong relationship with the other party. Both sides are aiming at fair access at a fair fee.
In any licensing situation, you must examine your own perspectives and goals, as well as those of the other party. It is important to tailor your negotiations and agreements to match your particular circumstances. There is always room for creativity in your licences. As with all agreements, it is best, where feasible, to consult a lawyer before signing on the dotted line, as opposed to consulting one at a later stage when a dispute arises.
A well written Licensing Agreement Strategy will lead to licence agreements that clearly set out the relationship between the parties as well as the details of the content being licensed, and help you avoid disputes in the future. It will guarantee the establishment of licence agreements that are succinct and reflect your needs, either as a licensor or licensee.
Summary of Licensing Tips
This book is full of tips to help you ensure your licence agreements work for you. Below are ten basic points you should always keep in mind when negotiating digital licences.
- Know your role. Are you a licensor or a licensee, or both? This question needs to be asked each time you enter into a new licensing arrangement, and your response has to pertain to the specific arrangement in question.
- Take the time to develop a written Licensing Agreement Policy. During the negotiating process, refer to your Licensing Agreement Policy as often as necessary. Its purpose is to guide you more easily and consistently through the licensing process.
- Avoid oral licences. Although not always mandatory, use written agreements. Your written licence is a summary of the terms and conditions of use of the licensed content – you will use it for interpretation purposes should any question arise about the licensing arrangement.
- Understand your obligations. Before signing on the dotted line, make sure you understand and are comfortable with the obligations the licence demands of you. Do not base your agreement on any oral representations. If you see a clause you do not like but the other party says do not worry it will never be enforced, get that clause removed. Make sure you can live up to any obligations in the agreement.
- Cover all issues. Do not avoid putting in the agreement any relevant issues because you think that issue might "scare off" the other party. Best to put everything on the table at the beginning and to avoid disputes in the future.
- Avoid legal language. Simple non-legalistic language is the best approach. You want wording that is clear to the two parties signing the agreement, and to anyone who needs to later interpret or apply that agreement. Defining any ambiguous or new technical words can help with this.
- Think about the future. With digital media, the future seems to arrive before we can understand the present media and technology. Whatever the changes, electronic rights will be relevant regarding the use of works in new media. Consider how the licences you sign today might impact yet unknown media and technology.
- Be consistent. Use consistent words and terms. Do not use "content" in one clause, "material" in another clause, then "publication" in another clause.
- Be creative, patient and flexible.
- Know when to walk away.
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