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2 21

Including Library Principles  
in Licenses
Legal Language Without a Legal Degree
Christina Torbert, Head of Continuing Resources and Acquisitions, University 
of Mississippi

ABSTR ACT:  Libraries should be amending the licenses received from 
vendors for electronic resources to reflect library principles. The 
ASERL Eleven list of licensing principles seeks to provide rationale and 
example language for 11 important library values. These statements 
and samples of legal language are discussed. This list is just one of 
many resources that librarians can use to negotiate better and more 
helpful terms in agreements, and further sources are given.

INTRODUCTION: WHY THIS PRESENTATION? 

I first learned that libraries can edit the licenses presented by 
vendors at an Atla workshop nearly 20 years ago, taught by the 
incomparable Kevin Smith. It was a revelation that libraries should 
ask—no, demand—changes to licenses, to be sure the library was 
getting the terms that best fit their situation. Early on, I physically 
redlined and wrote in the terms we wanted or needed. I work for 
a state-supported university; they have some very specific require-
ments. When vendors began refusing some of the changes, I met 
with someone in the General Counsels’ Office who advised me to 
do the best I could and calculate the risks the library was willing 
to accept. This was back in the early days when the library signed 
all the library-related licenses; those times are past. Later, the uni-
versity began requiring a Mandatory Addendum be attached to all 
licenses, but no one was really checking if the vendor was agreeing 
to those terms. Now, all University licenses and contracts are signed 
by one Vice President, and vendors that do not accept the Mandatory 
Addendum do not get our business.

But all these legal maneuvers by the University and General 
Counsel have to do with specific business practices, warranties and 



2 2 2    ATL A 2024 PROCEEDINGS

liabilities, and not really with the terms of use specific to library 
resources. Librarians should be looking out for the terms that pre-
serve and even expand the long-standing values we believe in: broad 
fair use, access to sharing and new research methods, user privacy, 
and transparency about costs. Many different entities, very large 
libraries and their consortia, have been working on these terms 
and sharing them for a decade or more. NISO published SERU, a 
basic, bare-bones license template, in 2015, with the hope that it 
could act as an open model that vendors and libraries could agree 
on without any negotiation. California Digital Library and the Big 
Ten Alliance have extensive websites explaining the values libraries 
should be advocating for in their licenses of electronic resources. 
The Canadian Research Knowledge Network (CRKN/RCDR) also has 
a very helpful website. 

WHY THIS LIST OF LIBRARY PRINCIPLES?

Our library at the University of Mississippi is a member of ASERL 
(Association of Southeastern Research Libraries), and I served 
on the drafting team for the ASERL Eleven, a list of principles for 
amending licenses received from vendors for electronic resources 
(ASERL 2022). The drafting team talked for a long time about why 
we wanted to create another licensing guide, and we narrowed it 
down to two primary reasons. We wanted to make clear that the 
changes we were asking for to our licenses were not arbitrary; they 
were connected to library values. And we wanted to give specific 
examples for acceptable language to support those values. The draft-
ing team included very experienced licensing librarians, with at least 
one lawyer evaluating the statements and suggested language. We 
wanted small libraries without those resources or colleagues to be 
able to request firm, quality language from their vendors.

HOW DID WE BUILD THIS LIST?

The task force started with the principles. The group brainstormed the 
common, important, long-standing values of librarianship, grouped 
principles together, and considered which ones were still missing. We 
tried to get the list down to the top ten, but we had to compromise 
at eleven. Then we mined all the great resources created by other 



Listen and Learn Sessions    223

libraries and consortia to find examples of statements and licensing 
language already existing. We borrowed, mixed and matched, and 
edited to represent what we thought were contemporary and vital 
statements of values. Our value statements use terms like “ASERL 
seeks to,” “ASERL believes,” and “ASERL affirms.” We tried very 
hard to put our values into positive statements, explaining why each 
principle was important to our mission as libraries. In the end, we 
alphabetized the principles, not imposing a hierarchy on the relative 
importance of each principle.

WHAT BASICS ARE ASSUMED IN THE ASERL ELEVEN?

First, the group assumed that each library would know and work 
within their own state’s or institution’s requirements for contracts. 
I mentioned that Mississippi has a Mandatory Addendum to all 
University Contracts. Most of the points of that Addendum do not 
apply to library resources, but I am required to attach it anyway. 
It outlines the relevant state laws and university policies that the 
library and the vendor must follow.

The ASERL Eleven does not tackle liability or warranty language. 
Libraries should not be liable for the actions of their patrons, but 
they should take reasonable actions to ensure sure patrons under-
stand proper use of resources. Our library is not allowed to make 
any warranties. 

The ASERL Eleven does not include language about authentication 
methods or who qualifies as users. Each library should make these 
terms match the technology and policy of their institution.

The task force did not address governing law or dispute resolution. 
These are details where each library should follow the requirements 
of their state or institution. For example, my state requires that all 
agreements be governed by the laws of Mississippi and that all meth-
ods of dispute resolution be available. For most vendors, changing 
these two points is not a problem, but occasionally the vendor will 
add language about who pays the costs of adjudicating disputes in 
a location that isn’t their preference. Alternatively, the license can 
be silent on these matters, leaving them to be negotiated if there is 
a question later. 



2 24    ATL A 2024 PROCEEDINGS

The last point not on the values list is mutual agreement to changes. 
I highly recommend including language requiring mutually signed 
addenda for any changes to the terms of the agreement. This point 
can be difficult for “clickthrough” licenses, or when the library 
is agreeing to terms of use posted on a website. If you cannot get 
signed agreement to the terms, you can ask that notice be given of 
any substantial changes before they come into effect.

WHAT IS COVERED IN THE ASERL ELEVEN?

1. Accessibility
ASERL seeks to ensure equitable access to information as a core 
ethical commitment, as well as a legal obligation.

The Library Accessibility Alliance (LAA) had already done great 
work on model accessibility language, and the ASERL task force didn’t 
think we could improve it. The model language includes examples 
for both US ADA-compliance and language that is more appropriate 
for non-US institutions. Both versions include provisions for librar-
ies to adapt non-compliant resources to the needs of the patron. The 
LAA website is provided in the guidelines (ASERL 2022, 4).

2. Author Rights Retention
ASERL seeks to protect the rights of authors. Content licenses should 
make clear that vendors will not require affiliated authors to waive 
licensing or deposit policies, mandates associated with institutional 
policy, funder policy, or other sources.

All of us in the ASERL task force could cite examples of research-
ers not realizing that they could also change the author agreements 
presented by publishers and that they, the authors, did not have 
to sign away their self-archiving and depository rights. Including 
language about author rights tries to preserve the right of research-
ers to be able to use the institution’s repository, if there is one, now 
and in the future. 



Listen and Learn Sessions    225

3. Confidentiality and Non-disclosure Statements
ASERL believes libraries should have the right to share pricing and 
contract information with interested parties to promote transpar-
ency and collaboration.

One of the dirty secrets of electronic resource licensing is that 
every library pays a different amount, depending on multiple factors: 
historic pricing, quantity of content purchased or subscribed, and 
ability of the librarian to negotiate in convincing business terms. 
Vendors and publishers may intend non-disclosure agreements (NDAs) 
to keep competitors from learning about their business practices, 
but the NDAs also keep a very collaborative profession from shar-
ing information about pricing and favorable terms of use with each 
other. Librarians should ask to have these provisions removed—but 
fair warning, I’ve had fifty-fifty success with getting them removed. 
The University’s contract office was only concerned that the provi-
sion allowed the transparency required by state law, and so far they 
have not backed up the library’s concerns about this matter.

4. Content Retention / Post-Termination Access
ASERL believes libraries must provide consistent, reliable access 
to resources for faculty and students to support their scholarly 
and research activities over the long term. Content licenses should 
provide perpetual access rights to licensed content wherever pos-
sible. If hosting fees are required, these amounts should be strictly 
defined and limited as much as possible.

This point is becoming less of an issue, especially for electronic 
journals, and it is another instance where the task force found model 
language in the LibLicense model agreement that said all we wanted. 

Libraries should ask about post-termination access (PTA) for every 
new resource; it isn’t always available, depending on the type of 
resource. Be sure you understand how PTA is provided: hosted on 
the vendor site or delivered in an alternate format for the library 
to host locally. If the vendor is hosting the content, be sure you 
understand what, if any, ongoing fees are required for that hosting. 
If several different resources are hosted on the same platform, ask 
for a cap on all the fees: not over a certain dollar amount per year, 
or not over a specific dollar amount total over all years. 



2 26    ATL A 2024 PROCEEDINGS

5. Digital Rights Management
ASERL believes Digital Rights Management (DRM) makes licensed 
resources less useful for library users, limiting their lawful scholarly 
activities by controlling when, where, and how they can consult 
licensed resources. Content licenses should forgo DRM restrictions 
in favor of usability, regardless of the platform through which con-
tent is provided. 

DRM refers to the restrictions vendors put on how and how much 
electronic content can be used: pages downloaded or printed, ability 
to post via pdf, ability to share with colleagues or other libraries, 
how many authorized users can access the content simultaneously, 
etc. All these restrictions make the library’s electronic collections 
less user-friendly and more confusing. At a panel presentation at 
Atla Annual last year, we heard various publishers say the different 
platforms control DRM. The platforms and (usually book) vendors 
claim that the publishers make those decisions. One method for 
addressing this issue is to prefer purchasing ebooks and content 
from publishers and platforms that provide DRM-free content. 

The next two points (alphabetically) have become pretty standard 
for electronic resources licenses; there isn’t much debate about 
these practices being allowed. The ASERL task force still felt it was 
important to reiterate the overarching library principle: Fair use 
protects the reasonable use of content, even if the library does not 
“sign” a license, and contracts should never reduce fair use.

6. E-reserves/Course packets
ASERL affirms the principle of fair use which protects the use of 
reasonable amounts of content in e-reserves and course packs, even 
absent a license. Fair use rights should be enhanced, not reduced, 
when libraries pay for access. 

The suggested language does not limit the format of the content 
available to be compiled in the e-reserves or course packs.

7. Interlibrary Loan
ASERL affirms that interlibrary loan (ILL) is a core library function, 
which ensures that library users who occasionally need resources 



Listen and Learn Sessions    227

held at other libraries can request these resources through their 
home institutions. Content licenses should permit ILL to the full 
extent permitted by US copyright law. Content licenses should not 
include numerical limits on ILL.

The example language for ILL also removes restrictions on how 
ILL is fulfilled. Libraries should be able to use whatever technology 
is available to them to fulfill legal requests, without worrying about 
use restrictions from the license. The other principle supported in 
this language is keeping vendors from adding restrictions to con-
tent that was intentionally published without restrictions via OA 
or Creative Commons. The language also includes formats that are 
difficult to share: data, audio/video, electronic archives. The task 
force wanted to keep the option open for when sharing of these 
formats is technologically possible.

The next two principles are linked to each other and to other 
principles. Example language isn’t provided for either principle, 
but the task force wanted to express the values inherent in them.

8. Price and Cost Transparency
As with the NDA principle, ASERL believes libraries need meaning-
ful information about vendor products and prices to make well-
informed decisions. Vendors should provide prices in simple, clear 
terms that enable comparison across products, across vendors, and 
across institutions. 

Libraries need to control costs. While avoiding non-disclosure 
clauses is an important step, so are clear, understandable, transpar-
ent pricing structures and subscription alternatives. When vendors 
present complicated packages with varied pricing, it is difficult for 
libraries to compare products across different vendors, but also 
sometimes for similar products from the same vendor. 

9. Support for Open Access
ASERL seeks agreements that promote open access (OA) to research 
in ways consistent with these broader licensing principles. Libraries 
should resist the inequities and dysfunctions associated with 
subscriptions.



2 28    ATL A 2024 PROCEEDINGS

The taskforce did not want to specify which models for OA were 
acceptable, but we did want to frame agreements that include OA 
within the broader values. We believe that libraries should be sup-
portive of OA, but librarians should not accept just any method of 
providing OA. These principles were written just as the trend for 
Transformative Agreements (TAs) was taking off, and even then some 
libraries and consortia were beginning to question the wisdom of 
libraries blindly funding APCs (article processing charges), without 
any requirements on the vendor side to explain how much APCs cost 
and how those costs are set. TAs have the potential to replicate the 
publishing inequities of subscriptions.

10. Text and Data Mining
ASERL affirms that fair use protects text and data mining (TDM). 
The right to read also includes the right to perform computational 
analysis. Content licenses should provide support for computational 
uses of licensed content, without unreasonable restrictions. 

The mantra in the task force for this principle was “TDM is Fair 
Use.” Full stop. The suggested language does recognize that some 
TDM projects will need specially-prepared data sets, and vendors 
should be allowed to recover the costs of preparing that data. But the 
form of the data should be controlled by the user, not by the vendor.

Finally, the longest suggested language paragraph. 

11. User Privacy and Data Security
ASERL affirms that library user data should only be used to enable 
the provision of licensed content and services. Any sharing of user 
data should require prior notice and user consent. Vendors should 
be barred from using data about library users’ research activities 
as part of surveillance products.

Library users should not be required to register and create per-
sonal accounts in order to use resources the library provides, and 
if users do choose to create personalized accounts, the vendors 
should not be reselling personal information, including use pat-
terns of specific users. There are instances when the government 
can subpoena usage information from vendors, but vendors should 
not be selling or providing wholesale search and use data to other 



Listen and Learn Sessions    229

parties. The list was written in the context of the 2021 reports about 
LexisNexis and U.S. Immigration and Customs Enforcement (ICE), 
and we recognized the abuse possible of our users’ search patterns 
being resold to other agencies.

WHAT ALREADY NEEDS UPDATING?

These principles were written and edited in 2021, for release in 
2022. Two years later, the principles still apply, but the situations 
for application have already expanded. I have already mentioned 
Transformative Agreements as part of the support of Open Access. 
The task force considered making a statement about TAs and how 
to make them support library values, but we decided the principle 
was broad enough for each library to make their own policies and 
decisions about which models of supporting OA works for their situ-
ation. I would encourage libraries to outline for themselves what 
values they want to see supported in their agreements around OA 
and evaluate each offer or model against those values. 

The other elephant challenging the licenses for electronic resources 
is Artificial Intelligence (AI). As we can tell from the presentations at 
this year’s Atla Annual, AI is expanding even faster than TDM was 
five years ago, and while the two are related, I have seen at least 
one vendor taking peremptory action to exclude use of AI tools on 
their content. Granted, it was a major international science publisher 
who was already developing their own AI tool and clearly wanted to 
disable potential competitors using their product to build competing 
tools. The International Coalition of Library Consortia has produced 
a thorough statement about AI and electronic resource licenses, but 
for sample language, our state-side group looked to the language 
publicly posted by CRKN:

… Authorized Users may not use the Subscribed Products in combination 
with an artificial intelligence tool to:

(i) Create a competing commercial product or service for use by third 
parties;

(ii) Adversely disrupt the functionality of the Subscribed Products; or

(iii) Reproduce or redistribute the Subscribed Products to third party artificial 
intelligence tools, except to the extent limited portions of the Subscribed 
Products are used for research purposes (including to train an algorithm) in 



2 30    ATL A 2024 PROCEEDINGS

a closed or self-hosted environment solely for use by the Authorized Users, 
to ensure such use does not train the algorithm of a third party artificial 
intelligence tool (other than for the creation of prompts or queries) and 
does not result in the third party provider of such artificial intelligence 
tools retaining any residual portions of the Subscribed Products.

… Authorized Users may only use artificial intelligence tools as permitted 
in this Agreement in combination with the Subscribed Products if such 
artificial intelligence tools incorporate reasonable security.

[The Vendor] and the Subscriber both acknowledge the unique challenges 
and complexities around the emerging artificial intelligence technolo-
gies and LLMs and agree to mutually support each other in developing 
policies and protocols for both parties’ benefit. If there are existing, or if 
during the term of this Agreement the government adopts mandatory 
laws regarding artificial intelligence in research, such law shall prevail to 
the extent of any inconsistency with this Agreement. (Canadian Research 
Knowledge Network, 2024, 2–3).

There are a few parts of this language I particularly like. It protects 
various uses of AI (training an algorithm and creating prompts) 
for research while protecting the functionality of the product; and 
it provides protection for the vendor as well as for the researcher. 
This second set of paragraphs also limits the enforcement of these 
AI provisions to “reasonable security”, requiring researchers to be 
aware of how the products are interacting with AI, but not requiring 
special programs to protect the data. And they keep the dialog around 
use of AI open for further adaptation. Time will tell if this language 
is broadly acceptable in the electronic resources marketplace.

WHERE ELSE TO SEEK EXAMPLES OF STRONG LICENSING LANGUAGE?

Here is a short list of helpful websites and groups that provide 
examples and statements around library values in licensing language. 

• California Digital Library Standard License:   https://
cdlib.org/services/collections/licensed/toolkit/

• Canadian Research Knowledge Network (CRKN/
RCDR): 
https://www.crkn-rcdr.ca/en/model-license

• NorthEast Research Libraries Consortium (NERL): 
https://nerl.org/wp-content/uploads/2021/03/
NERLModelLicense-_61019_a.pdf

• LibLicense Model License Agreement (2014): 

https://cdlib.org/services/collections/licensed/toolkit/
https://cdlib.org/services/collections/licensed/toolkit/
https://www.crkn-rcdr.ca/en/model-license
https://nerl.org/wp-content/uploads/2021/03/NERLModelLicense-_61019_a.pdf
https://nerl.org/wp-content/uploads/2021/03/NERLModelLicense-_61019_a.pdf


Listen and Learn Sessions    231

https://liblicense.crl.edu/licensing-information/
model-license/ 

The ASERL Eleven document has a longer list of resources that we 
looked at during our work. ASERL also has a License Review Team, 
volunteers that will read through licenses for other libraries and 
make recommendations about changes that should be requested. 
The LibLicense listserv is another resource where knowledgeable 
and experienced librarians will answer questions about licensing 
terms. Librarianship is a collaborative profession; if you have ques-
tions or concerns about any terms vendors are presenting, there are 
multiple places to reach out for help. 

REFERENCES

ASERL Licensing Principles Drafting Group. 2022. The ASERL Eleven: 
Recommended Principles and Terms for Electronic Resource 
Agreements. Volume 1 (Spring). Association of Southeastern 
Research Libraries. https://www.aserl.org/wp-content/
uploads/2022/02/2022-02_ASERL_Licensing_Principles_v1-0.pdf

Canadian Research Knowledge Network. 2024. “License Amendment 
2024 03-28”. Accessed July 1, 2204. https://www.crkn-rcdr.ca/
sites/default/files/2024-04/CRKN-Elsevier_2024-2026_License 
Amendment_2024-03-28_red.pdf. 

https://liblicense.crl.edu/licensing-information/model-license/
https://liblicense.crl.edu/licensing-information/model-license/
https://www.aserl.org/wp-content/uploads/2022/02/2022-02_ASERL_Licensing_Principles_v1-0.pdf
https://www.aserl.org/wp-content/uploads/2022/02/2022-02_ASERL_Licensing_Principles_v1-0.pdf
https://www.crkn-rcdr.ca/sites/default/files/2024-04/CRKN-Elsevier_2024-2026_License
https://www.crkn-rcdr.ca/sites/default/files/2024-04/CRKN-Elsevier_2024-2026_License



