Statement of Principles Guiding Licence Negotiation
1. Definition of users
1.1 In order to achieve its vision of providing access to all Australian residents to a core set of electronic resources, the Consortium aims to negotiate the broadest possible definition of 'User' consistent with a fair commercial return to Vendors. It is necessary to differentiate between 'all users' and 'all uses'. While access for all Australian residents is sought, the purposes for which the information can be used may be limited, providing the purposes are consistent with paragraph 2.1.
1.2 The Licence should provide for:
- access to Products for individual 'walk-in' Users of Members
- remote access for registered Users of Members
2. Required rights for access and use
2.1 Any Licence entered into by the Members must recognise and should not restrict or abrogate the rights of the Members or their User community permitted under Australian copyright law, or comparable fair dealing provisions of the jurisdiction of the licence.
2.2 In particular, Licences should permit use at a minimum as allowed under Australian copyright law, including unlimited viewing, and downloading and printing for permitted purposes of education, research or private study.
2.3 Licenses should permit the use of products for the delivery of standard library reference services, including online and virtual reference services delivered via email or online chat, such as AskNow!.
2.4 The Licence should state clearly what access rights are being acquired by the Consortium:
- during the term of the Licence
- once the Licence expires or is terminated.
2.5 The Licence should include provision for compulsory transfer (novation or assignment) by the Vendor to any entity that takes over the business of the Vendor.
2.6 Licences should permit the transmission of copies of parts of electronic publications for the purpose of non-commercial document supply between a Member and a requesting library, or individual, that is not a member of the Consortium for the purpose of research and study. A part may be an article contained in a periodical publication or a reasonable portion of a work. Permitted methods for transmission should include electronic transmission, for example, by fax or Ariel.
NB* Commonly now licenses seem to require that interlibrary lending be handled by first printing and then delivering an article by fax, Ariel, snail mail, etc.
3. Archiving / preservation
3.1 The Consortium seeks perpetual access to electronic information to which it subscribes, including detail on the extent and method of access to backfiles.
The Licence should specify who has permanent archival responsibility for the Product and under what conditions the Consortium may access or refer Users to the archival copy.
Alternatively, the licence agreement should allow the Library to copy data for the purposes of preservation.
4. Pricing Model
4.1 The preferred basis for pricing is either the number of concurrent Users or site licences, rather than population based.
4.2 The Licence should permit additional Users for the purposes of running training sessions for users/staff, if there is a concurrent user session limit.
5. Authentication
5.1 Vendors should be flexible as to the mechanisms of authentication or validation of Users to suit the needs of Members. IP address authentication, with the ability to access Products at any staff or public PC in a library, is the preferred method wherever possible.
5.2 Vendors should provide support for on-site wireless access by Users with personal portable devices.
6. Service and support levels
6.1 The Licence should specify the Product performance and service levels the Consortium can expect from the Vendor and the Product, including technical interface and operation requirements. (Note: performance and service levels are likely to be Product-specific.)
The Licence should include specific performance warranties at least as to reliable on-line availability and currency of data and/or text and should specify penalties for failure.
6.2 Resources must be available on a 24-hour, 7-day per week basis except for short scheduled downtimes announced with adequate notice to the Consortium.
The Vendor must restore access to the Product as soon as possible in the event of an interruption or suspension of the service.
6.3 The Licence should include provision for the Vendor to take all reasonable endeavours to ensure that the Server has adequate capacity and bandwidths to support the usage of the Consortium at a level commensurate with the standards of availability for information services of similar scope operating via the World Wide Web as such standards evolve from time to time over the term of this Licence.
6.4 The Product should include a guarantee that the service will be supported on standard Web browsers. Web-based services should meet the W3C Web Accessibility Initiative guidelines.
6.5 Licences should specify the customer support services that will be provided. It is highly desirable that customer support is available as a minimum from 8am to 6pm (Australian Eastern Standard Time), Monday to Friday, via either a toll free telephone number or email.
7. Monitoring/user statistics
7.1 Licences should guarantee the Consortium as a whole, as well as individual Members, the right and opportunity to measure use and to gather and exchange the relevant management information needed for collection development and Consortium purposes.
7.2 A Vendor should be able to generate for the Consortium as a whole and for every participating Member (including Public Libraries whose interests are being represented by a Member):
- composite data about the use of the Product;
- itemised statistics about information accessed, for instance, usage at both the journal title and article level; and
- use from each Member institution.
Vendors need to provide figures that meet the agreed international set of standards and protocols governing the recording and exchange of online usage data.
Alternatively, the Product should contain an administrative function enabling Members to generate easily their own statistics.
7.3 The routine collection of data by either party to a Licence should be predicated upon disclosure of such collection activities to the other party and to other Members and must respect and comply with laws and institutional policies regarding confidentiality and privacy.
8. Liabilities
8.1 Licences must not place liability on the Members for the misuse of content or the Product by the User. However, the Consortium will make reasonable efforts to prevent misuse or abuse by Users and will cooperate with Vendors to stop it should it occur.
8.2 The Licence should require the Vendor to give the Members notice of any suspected or alleged licence violations that come to their attention and allow a reasonable time for the Consortium to investigate and take corrective action, if appropriate.
9. Privacy
9.1 Licences must ensure that privacy of individuals using the Product is protected. The Vendor must not collect or record information about individuals using the Product, share any information about individuals with a third party, or use such information for marketing purposes.
10. Administrative Arrangements
10.1 All terms and conditions should be negotiated and clearly stated in the Licence, including:
- details on to whom the Licence is to be granted, i.e., Members, including any Public Libraries on whose behalf a State or Territory Library is acting;
- the number of simultaneous Users permitted;
- fixed price Fees including any applicable GST;
the pro rata rate for libraries joining later in the subscription year or otherwise during the term of a Licence.
10.2 A Licence should not require the signatory Members to adhere to unspecified terms in a separate agreement between the Vendor and a third party unless the terms are fully reiterated in the Licence between the Vendor and Members and are acceptable to the Consortium.
10.3 The Licence should provide that any changes to the Licence are subject to prior agreement by licensed signatories.
10.4 Non-disclosure language should not preclude the Members from sharing pricing and other significant terms and conditions with other consortia, or for reasons of public accountability.
10.5 The Vendor should notify the Members, via the NLA, at least 30 days in advance of the following circumstances:
- any changes to the terms of the licence
- any substantial change to the content (other than normal updating)
- any change to technical specifications which may affect performance of the Product
- any changes that may affect access to the product.
The Licence should include a provision for the signatory Members to terminate the agreement with a pro-rated refund if any of the above changes render the Product less useful in a material respect to the Consortium.
10.6 The Licence should include provision for the signatory Members to terminate the agreement if the Vendor becomes insolvent or subject to receivership, liquidation or similar external administration.
10.7 A Licence should require the Vendor to defend, indemnify, and hold the Members harmless from any action based on a claim that use of the Product in accordance with the Licence infringes any patent, copyright trade-mark, or trade secret of any third party.
The Licence should include a procedure for dealing with infringements.
10.8 The Licence should include a warranty that the Vendor has the right to grant the Licence and that the Members' use of the resources contained in the Product will not infringe the Intellectual Property rights of any person.
10.9 The Licence should specify how and when updates to the Product will be provided and any fees associated with updates.
10.10 The governing law under which the Licence is made should be the law of the Australian Capital Territory or another Australian State or Territory.
