Desired result

Publishers may include language in any number of clauses that affect how long Authorized Users may retain copies of downloaded materials after the termination of the license. You might see this appear in clauses like: Authorized Use; Restrictions on Use; Termination for Breach; Text and Data Mining (TDM); or even a separate clause dealing entirely with destruction of copies. Some vendors are especially sensitive about retention of licensed content used for text and data mining because of the volumes of downloads involved. This can be particularly challenging with business databases and other vendors who are not primarily engaged with the academic market. Some vendors will, therefore, try to require that the content acquired for TDM be deleted after a specified period of time, or after the completion of a specific TDM project.

Mandates on ensuring destruction of copies are not viable in academic research for several reasons.

• First, most academic projects do not have a discrete start and end – one “project” will result in multiple publications, the result of one analysis will suggest the next which will require the same data, etc.  Vendors who more frequently interact with business or industry may be assuming that the data can be downloaded and used towards a deliverable and then will no longer be needed, which is not how academic research progresses.
• Perhaps more importantly, researchers also need to maintain datasets for purposes of replication and validation of their results. Reviewers and other researchers will need to be able to determine that the research methodology used in the study is valid and that results are accurate, which generally requires access to the source data. Depending on the research needs this source data need not be the full text – it could, for example, consist of metadata and relevant snippets – or it may not need to be fully public, but generally a full copy of the dataset needs to be retained in some manner. And;
• As a practical matter, it would be impossible to ensure that Authorized Users have actually deleted or destroyed copies as the library typically does not control the research environment in which the Authorized User is working.

Thus, if a publisher or vendor requires destruction, it’s advisable to qualify it with language like:

• Least restrictive: “Authorized copies of Licensed Materials made by Authorized Users may be retained for research and educational purposes and used subject to the terms of this Agreement.”
• More restrictive: “It is mutually understood that Licensed Content provided under this clause may be retained by Authorized Users throughout the lifecycle of their research projects and as necessary for replication and validation of research results. Licensed Content retained under this clause shall remain subject to the terms of this Agreement.”
• Most restrictive: “University/Licensee shall use reasonable efforts to notify Authorized Users that Materials shall be destroyed at the termination of this Agreement.”

This way you can undertake whatever notification and discovery efforts you already use to advise Authorized Users of the terms of your agreements, without taking on liability for ensuring that they comply—when you have no authority to be able to control them.

Desired Language

If a publisher asks for a statement addressing data or content retention, ideally the clause or statement would be very broad, like:

Authorized copies of Licensed Materials made by Authorized Users may be retained for research and educational purposes and used subject to the terms of this Agreement.

Alternatively you could limit retention to reasonable lifecycles of research projects, as follows:

It is mutually understood that Licensed Content provided under this clause may be retained by Authorized Users throughout the lifecycle of the TDM project and as necessary for replication and validation of research results. Licensed Content retained under this clause shall remain subject to the terms of this Agreement.

Or if a publisher insists on destruction and rejects such limitations, at least ensure that the library’s responsibility is only to use reasonable efforts to notify users of the requirement, as follows:

University/Licensee shall use reasonable efforts to notify Authorized Users that Materials shall be destroyed at the termination of this Agreement