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Policy on Acquiring Copyrighted Material in Electronic Format

NATIONAL LIBRARY OF MEDICINE

April 27, 2000

 


A. INTRODUCTION:

The purpose of this document is to establish policy by which the National Library of Medicine (NLM) acquires copyrighted material in electronic format in support of its mission.

NLM’s policy is to acquire copyrighted material only under conditions that (1) do not abrogate its rights under copyright laws, (2) do not violate the Federal Acquisition Regulation or other Federal law, (3) do not depart from reasonable consumer expectations and were fully disclosed by the licensor prior to agreement, (4) do not violate fundamental public policy, and (5) do not impede or restrict the Library’s ability to accomplish its mission.

B. BACKGROUND:

The National Library of Medicine (1) assists the advancement of medical and related sciences through the collection, dissemination and exchange of information important to the progress of medicine and health; (2) serves as a national information resource for medical education, research, and service activities of Federal and private agencies, organizations, institutions, and individuals; (3) publishes and distributes guides to medical literature and audiovisual materials in the form of catalogues, indexes and bibliographies; (4) develops, produces and disseminates audiovisual materials and systems and other aids to medical education, research, and practice; (5) supports the publication of biomedical literature; (6) provides support for medical library development and for training of biomedical librarians and other health information specialists; (7) conducts and supports research in techniques and methods for recording, storing, retrieving, and communicating health information; and (8) provides technical consultation services and research assistance.

Advances in computer and telecommunications technologies have dramatically increased the ease with which copyrighted materials can be disseminated, accessed, and copied. In this environment, information providers are increasingly turning to licenses to define and control the use of their products. Since a license could be used to abrogate library provisions authorized by copyright statutes, such as fair use, and impose other restrictions and requirements, NLM staff need to ensure that the terms and conditions of licenses do not impede NLM’s ability to carry out its mission.

C. DEFINITIONS:

1. Acquisition:
As used in this policy, the term "acquisition" shall refer to all means by which NLM obtains copyrighted material in electronic format. The term is not restricted to acquisition by contract or small purchase, but includes all means of acquiring the material; e.g., gifts, memoranda of agreement, or by any other device even if no transfer of funds is involved.
2. Copyrighted Material in Electronic Format:
As used in this policy, the term "copyrighted material in electronic format" shall refer to any work protected by U.S. copyright law which NLM acquires in an electronic format, except software acquired in accordance with NIH policy or under GSA Federal Supply Schedule procedures.
3. License:
As used in this policy, the term "license" shall refer to any agreement which sets forth the terms and conditions by which the holder of the copyrighted material grants permission to use the material.
4. Mass Market License:
As used in this policy, the term "mass market license" shall refer to any agreement whereby the user accepts the terms and conditions of the license upon opening the seal on a shrink-wrapped package or clicking one’s acceptance on-line in order to gain access to the licensed material. This type of licensing agreement involves no negotiations between the licensee and licensor, nor does it involve any written, signed agreement.
5. NLM User:
As used in this policy, the term "NLM user" shall refer to NLM’s authorized agents, NLM's on-site and off-site patrons, and NLM staff.
6. Use:
As used in this policy, the term "use" shall refer to accessing the copyrighted material for individual study or research by an NLM user as permitted by copyright law. It also refers to the act of NLM entering the copyrighted material into the NLM databases.
7. Interlibrary Loan:
As used in this document, the term "interlibrary loan" refers to the process of requesting and supplying a copy of a full-text publication library to library on behalf of a library patron.
8. Archive:
As used in this document, the term "archive" means to maintain the permanent availability of an electronic resource. This includes monitoring and copying files as needed and migrating them from one generation of technology (medium, format, or platform) to the next to keep them accessible into the future.

D. POLICY:

Prior to acquiring copyrighted material in electronic format, the following issues, at a minimum, shall be addressed:

1. Unrestricted use of material created by the U.S. Government, with support from the U.S. Government, or by employees of the U.S. Government as part of their official duties;
2. "Fair use" of the material (as construed by the Courts);
3. Right to archive;
4. Copying for interlibrary loan;
5. Access by NLM users;
6. Legal liabilities and responsibilities;
7. Enforcement of the terms and conditions of the license must not violate the privacy and confidentiality of authorized users; and
8. Fair and reasonable price.

Mass Market Licenses: NLM employees need not follow the review and approval process described under the PROCEDURES section of this policy when acquiring licensed material subject to mass market licenses. However, NLM employees should review the terms and conditions of mass market licenses beforehand to determine if they contain any provisions detrimental to the programmatic requirements.

It is recognized that nearly all mass market licenses include provisions that are customarily found in the commercial sector but which a Federal agency will find invalid and unenforceable. Commercially available materials shall be acquired by NLM under licenses customarily provided to the public to the extent such licenses are consistent with Federal law and otherwise satisfy the Government’s needs. The NLM employee should notify the licensor, in writing, to essentially the following:

"Please be advised that the National Library of Medicine (NLM) (the Licensee) has accessed your licensed copyrighted materials (***name of product***). Your mass market license may include provisions that are customarily found in the commercial sector but which are not appropriate for a license with a Federal agency. Specifically, the Licensee considers any provision in your mass market license to be inappropriate that:
(1) contravenes a right granted the Licensee under U.S. copyright law (e.g., fair use, right to archive, copying for interlibrary loan),
(2) violates the Federal Acquisition Regulation or other Federal law (e.g., Antideficiency Act, Principles of Federal Appropriations Law),
(3) departs from reasonable consumer expectations and was not disclosed by the Licensor prior to agreement, or
(4) violates fundamental public policy.
NLM shall assume that you are in agreement with the statements herein if you accept NLM's payment for use of the above named licensed copyrighted materials, or fail to otherwise notify the undersigned, by written letter, within 20 calendar days from your receipt of this notification."

E. PROCEDURES:

The responsibility for acquiring copyrighted material in electronic format is distributed among the following NLM officials:

(1) The Program Official has primary responsibility for:
  • Receiving the license and reviewing its terms and conditions with respect to technical issues and programmatic considerations;
  • Submitting the license to the program area’s License Review Official who will coordinate a review of the license terms and conditions with the other NLM program areas to determine if any overlapping technical issues and programmatic considerations need to be considered; [NOTE: Each NLM program area will appoint an individual (either the Administrative Officer or a program official) to serve as its License Review Official.]
  • Conducting preliminary discussions with the licensor, if deemed necessary; (licensor must be advised that any agreements reached during discussions are subject to final approval by NLM’s Contracting Officer);
  • Obtaining advice from NLM’s Contracting Officer on legal and business issues if deemed necessary; and
  • Recommending to the Program Associate Director that the agreement be approved as written, approved with changes, or returned to licensor unsigned.
(2) The Program Associate Director has responsibility for:
  • Reviewing the recommendations of the Program Official and License Review Official;
  • Concurring with the Program Official’s recommendation to approve or disapprove the agreement; and
  • Forwarding concurrence to NLM’s Contracting Officer.
(3) The NLM Contracting Officer has primary responsibility for:
  • Reviewing the license’s terms and conditions with respect to business and legal issues;
  • Assisting the Program Official in any discussions with licensor if deemed necessary;
  • Obtaining advice from legal counsel if deemed necessary;
  • Reviewing the final version of the license agreement and supporting documentation; and
  • Signing the final version of the license agreement and distributing the document.
(4) NLM Employees are cautioned, as follows:
NLM employees could incur a personal liability for infringement of a copyright or breach of a license, if actions taken by an employee were not in the course of the employee’s official duties. In this case, the Government would normally not be liable.

F. REFERENCES:

1. Copyright Revision Act of 1976 (Pub. L. 94-553)
2. Digital Performance Right in Sound Recording Act of 1995 (P.L. 104-39)
3. World Intellectual Property Organization Copyright Treaty of 1996, codified in the Digital Millennium Copyright Act of 1998 (P.L. 105-304)
4. Sonny Bono Copyright Term Extension Act of 1998 (P.L. 105-298)
5. Online Copyright Infringement Liability Limitation Act, codified in the Digital Millennium Copyright Act of 1998 (P.L. 105-304)
6. Computer Maintenance Competition Assurance Act, codified in Title 3 of the Digital Millennium Copyright Act of 1998 (P.L. 105-304)
7. World Intellectual Property Organization Performances and Phonograms Treaty, codified in the Digital Millennium Copyright Act of 1998 (P.L. 105-304)
8. Electronic Journal and Software Licensing Agreements (Memorandum from Donald C. Poppke, NLM Associate Director for Administrative Management; January 7, 1999)