37 Archival Copy
Erik Limpitlaw
Desired Result
The desired result of this section is to ensure the licensee has a permanent copy of the Licensed Materials for purposes of continued access without interruption, as well as long-term preservation. This section is intended for general purposes and complements the perpetual license clause discussed above by addressing archival needs specifically. Obtaining a copy for archival purposes without digital rights management (DRM) is especially important for the licensee because it allows greater flexibility to preserve and utilize the Licensed Materials without technical limitations.
What it Means
The primary focus of this clause is to establish that the licensee should be able to acquire an archival copy of the licensed materials at cost and without DRM for academic and preservation purposes going forward. This means that libraries can also migrate archival copies to new formats as technology evolves and aging formats deteriorate. This ensures that content remains usable and protects against technological obsolescence or degradation.
Desired Language
Example clause:
“Archival Copy. Licensor shall provide to Licensee upon request, or Licensee may create one (1) copy of the entire set of Licensed Materials to be maintained as an archival copy. The archival copy from the Licensor shall be provided without any DRM in a mutually agreeable medium suitable to the content, and any fees for provision of copies will be on a time and materials basis only.
In the event the Licensor discontinues or suspends selling or licensing the Licensed Materials, the Licensee may use such archived Licensed Materials under the same terms as this Agreement. If Licensee has a backup copy of the Licensed Materials as defined in Section IV, the backup copy may be used as an archival copy.” (CDL Model License 2016)
In this example, Section IV Archival/Backup Copy states:
“Licensor shall provide to Licensee upon request, or Licensee may create one (1) copy of the entire set of Licensed Materials to be maintained as a backup copy. In the event that the Agreement is terminated, or the Licensor no longer offers the Licensed Materials online, Licensee may use the backup copy to exercise Licensee’s rights under section XII, Perpetual Rights, of this Agreement.” (CDL Model License 2016)
Tricks and Traps
The trap is to avoid equating ownership of an archival copy or backup copy with using that copy in lieu of the subscribed access provided by the licensor. The archive copy is meant to be archived for long-term preservation purposes and not used for contemporary purposes. This is evidenced by the conditional language which may trigger use of an archive copy when either the Agreement is terminated, or Licensor no longer offers access to the Licensed Materials. Otherwise, vendors prefer users to access content on their platform where usage may be captured, and newly developed tools and functionality have been developed. Licensors are concerned that use of an archival copy may lead to attrition across its subscription base resulting in lost revenue and a reduced dependency for content and access.
In the above example, permission is granted to use an archive/backup copy upon termination of a license, but that is not always the case. Many license agreements include separate post-cancellation access policies that do not permit continued access to content once the agreement is terminated or expired. In some extreme cases, licensors may require the licensee to return or destroy all Licensed Materials upon termination. To avoid confusion or disputes, it is crucial to ensure that the Agreement includes clear archival policies that align with and do not contradict any post-cancellation access provisions.
A related trap with hosting an archive copy for preservation purposes is that, even if no active agreement governs its use, the archive is still subject to the default rules of intellectual property law. Ownership of intangible rights, including copyright, remains with the original rights holder and has not been transferred.
Importance and Risk
The importance of this section is to further advance a library’s mission of preserving knowledge for future generations. Obtaining an archive copy enables libraries to maintain long-term access to valuable electronic resources, fulfill preservation mandates, and maintain continuity of access regardless of external factors.
