28 Usage Statistics

Desired Result

The goal of this section is to establish the availability of usage statistics for an e-Resource and make clear it is available to the licensee with a specified frequency and format. Given the multitude of e-Resources available on various individual platforms, it is important for a licensee to clearly establish the availability of usage statistics with the licensor. This includes how they can be accessed, what specific information they will report on, the frequency of these reports, and the measures taken to protect individual user identity as well as the security of the usage data itself.

Essentials of the Law

The recording and reporting of institutional interests and individual user behavior when accessing content carry substantial legal implications. These implications are complex and encompass privacy, data protection, consent, security, and intellectual property concerns. Unauthorized collection, distribution, sharing, or misuse of such data can result in legal action.

In practice, legal implications surrounding privacy are not often addressed without the introduction of confidential information. The topic and definition of confidential information should be addressed elsewhere in the Agreement, as it is an obligation often required by both licensor and licensee. However, in this section, the privacy of usage data introduces the licensor’s obligation to treat personally identifiable information (PII) as confidential. This means that any information collected by the licensor which can personally identify an authorized user must be treated with the highest standard of care. Failure to do so can result in legal action. This type of information includes, but is not limited to, recorded logins, saved searches, usernames, and passwords.

Desired Language

Example clauses:

“Usage Statistics. Licensor must provide both composite systemwide use data and itemized data for individual campuses and labs, on a monthly basis. Statistics shall meet or exceed the most recent project Counting Online Usage of Networked Electronic Resources (COUNTER) Code of Practice Release (https://www.countermetrics.org/) including but not limited to its provisions on customer confidentiality. When a release of a new COUNTER Codes of Practice is issued, Licensor shall comply with the implementation time frame specified by COUNTER to provide use statistics in the new standard format.

Licensor shall not provide Licensee’s usage statistics in any form to any third party without the Licensee’s written authorization, unless the third party owns rights in the Licensed Materials. In all cases, the disclosure of such data shall fully protect the anonymity of individual users and the confidentiality of their searches and will comply with all applicable privacy laws. The Licensor shall not disclose or sell to other parties usage data or information about the Licensee or its Authorized Users without the Licensee’s written permission or as required by law.” (CDL Model License 2016)

Tricks & Traps

The trick here is ensuring that if the above example clause is used, then the licensed content and platform is COUNTER compatible. COUNTER is compatible with books, journals, and other e-Resources which may include conference proceedings, reports, and theses. (https://www.countermetrics.org/) Knowing at the time of negotiation whether this language accurately reflects what is made available from the vendor will help avoid future disputes. If this language does not represent what is being offered by the licensor in question, then it is advisable to adjust the language to reflect details, clearly stating when usage statistics are not available with the content.

When using the above language, please make sure that it is broad enough in scope to anticipate future releases. By using the following language as an example, parties can avoid frequent and minor updates just to indicate the most current released version: “…shall meet or exceed the most recent project Counting Online Usage of Networked Electronic Resources (COUNTER) Code of Practice Release.”

Usage statistics may also only be accessible through a vendor login platform and restricted to licensee administrative staff. It is essential to specify how usage statistics will be provided and to ensure that administrative credentials, accompanied by clear instructions, are provided at the time of acquisition.

Finally, please note that preparation and disclosure of usage statistics in aggregate form are permitted because it protects the identity of any individual user. This means that usage data will be reported at a macro level, ensuring it is not granular enough to identify individual users. Privacy laws and the treatment of data as confidential will continue to apply, thereby protecting the licensee.

Importance & Risk

The overall importance of the availability of usage statistics lies in confirming content is being used by a licensee and its authorized users. Usage statistics play an important role in the valuation of e-Resources, especially when making decisions about renewing content and acquiring new resources based on trial usage data. The trap, and common misconception, is thinking that usage data alone is sufficient to understand the value of e-Resources. It is good practice to compliment any quantitative analysis of usage data with qualitative or anecdotal commentary to provide a balanced approach to acquisition and collection development decisions.

While usage reports are a valuable tool to a licensee when managing e-Resources effectively, there are high legal risks associated with mishandling this data.