Wednesday, September 24, 2008

Defining Definitions in License Agreements

This draft article is a work-in-progress and will be published later this year in The Copyright & New Media Law Newsletter (Vol. 2008, Issue 4.) Please provide any comments for making this article more useful to all who license! Thanks.


DEFINING DEFINITIONS IN LICENSE AGREEMENTS

By Lesley Ellen Harris

Most license agreements for the use of digital content, from electronic databases to online journals and periodicals, contain at least a sentence and perhaps a paragraph or page, defining certain terms or words used in the license.

When To Define

Although the definitions in a license may seem straightforward when reviewing a license offered to you, or “minor” compared to other clauses in the license, do not underestimate their importance. Definitions can define the parameter of the license. Take the time to carefully review the wording used to define terms in the license, and when reviewing the license itself, be alert for other terms that you may need to provide an explicit definition for. The way words are defined should meet your needs and expectations. The definitions may affect other parts of the agreement, and you always want to ensure that you are licensing content in the manner that works for you.

Of course, it is neither necessary nor possible to define each term used in a license, so you need to choose which terms require an explicit definition. One rule of thumb is to ask yourself whether the term is being used as ordinarily defined in the dictionary, or whether it has a “special” definition for purposes of your license. In other words, if the dictionary meaning applies to your use of the term, no need to set out that definition in your license. However, if the term has its own meaning in the context of your license, best to set out that definition so both parties to the license are in agreement over the definition as it applies to your context.

Definitions, like all clauses in a license, may be subject to negotiation. If a vendor offers you a narrow definition of authorized users and you need to more broadly define authorized users, let the vendor know. This term may be part of your negotiations.

If you have more than one license with the same publisher for different content, you may use different definitions in each license, since the definitions may vary vis-à-vis different content, and your uses of that content.

Words to Define

Terms you should consider defining include:
• Commercial use
• Content (being licensed)
• Interlibrary loan
• Licensed content
• Premises
• Territory
• Not for profit
• Non-commercial
• Educational use

Authorized uses and authorized users may also be specifically defined in your definitions section, though in longer agreements, they are often defined in some detail as their own clauses in the body of the agreement.

Doing some general online searches, I came across a variety of licenses which I will share with you to show how different licenses deal with definitions of terms.

In the LexisNexis Academic & Library Solutions Subscriber License Agreement (http://www.nlc.state.ne.us/netserv/lncontract_rev_20040421.pdf), the definition of terms was found at the beginning of the five page agreement and the following definitions were included:
• Services: LNA&LS Web-based, subscriptions services for academic institutions, public library systems, and other libraries, including all such services currently offered and any which may be offered in the future.
• Subscription: Access to and use of the Services by a single Subscribing Institution under the terms of this Agreement.
Authorized Users and Subscription Period were also defined, but are not included in this article due to space limitations herein.

In the H.W. Wilson General Database License Agreement (http://www.hwwilson.com/abouthw/WilsonDatabaseLicense06.pdf), the definition of terms was found at the end of the seven page agreement where the following 16 terms were defined. Again, due to space limitations, only the wording for certain definitions is set out below.
• Authorized User
• Subject Database. The databasae or databases owned or licensed by Wilson to which Subscriber has notified Wilson that Subscriber desires access to for its Authorized Users.
• Order Form
• Subscriber. Those persons or entities that have assented to the terms of this agreement concerning the same subject matter, whereby they have been granted access to the Wilson Products.
• Subscriber Fee
• Wilson Products. The WilsonWeb Subscription Site or similar online service, FTP electronic feed, magnetic tape, CD-ROM, or any other electronic data comprising products provided by Wilson as listed on any order or Invoice now existing or hereafter arising between Wilson and the Subscriber.
• WilsonWeb Subscription Site
• Secure Network
• Server
• Course Packs. A collection or compilation of materials assembled by member of staff of the Subscriber for use by students in a class for the purpose of instruction.
• Electronic Reserve. Electronic copies of materials made and stored on the Secure Network by the Licensee for use by students in connection with specific courses of instruction offered by the Subscriber to its students.
• Interlibrary Loan. The process by which a library requests material from, or supplies material to, another library.
• Commercial Use. Use for the purposes of monetary reward (whether by or for the Subscriber or an Authorized User) by means of sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Materials. For the avoidance of doubt, neither recovery of direct costs by the Licensee from Authorized Users, nor use by the Licensee or by an Authorized User of the Licensed Materials in the course of research funded by a commercial organization, is deemed to be Commercial Use.
• Intellectual Property Rights
• Password
• User Name

To educate yourself in both choosing which terms to define and how to define them, I recommend you take advantage of the variety of licenses available online through your own searches.

Study on “Noncommercial Use”

As mentioned above, terms in negotiable licenses should be defined according to the needs of the parties signing the licenses. In a different situation, with non-negotiable licenses, you have to work within the definition provided in your license. Creative Commons (“CC”) (http://creativecommons.org) provides free written licenses to copyright owners (so owners need not write and/or negotiate their own licenses), who want to give the public certain permissions to use their works, in advance and without the need for direct content with the owner. Owners may choose one of the four CC licenses to apply to their content. One is a NC or noncommercial license. Under a NC license, the licensed content may be used by anyone for any purposes that is not “primarily intended for or directed toward commercial advantage or private monetary compensation” provided the use complies with the other terms of the license. On September 18, 2008, CC initiated a study to explore the differences between commercial and noncommercial uses of content, as these terms are used in various communities and with a large variety of content. Research is expected to be completed early in 2009. Since the terms noncommercial and nonprofit are often difficult to define in all license agreements, this study may helpful to all of us negotiating license agreements.

Placement of Definitions

There are no set rules as to where in your license you place your definitions. Placing all of the definitions in a single location in the license can make it easier to consult when coming across various terms in the agreement. Definitions are often set out at the beginning of a license, and sometimes in an appendix to the license.

1 comment:

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