27 Completeness, Notification of Changes

Desired Result

The goal of these clauses is for the licensor to employ quality assurances and confirm to the licensee and authorized user that the full scope of the electronic content is complete, up-to-date, and error-free. Academic institutions rely on the integrity of this content when conducting research, teaching, and learning. These clauses create a framework for the licensor to represent, with full transparency, that the entire extent of the licensed e-Resources is made accurately available. They also provide criteria for modifying or withdrawing content, and ensure proper notice is given to the licensee, along with available remedies, if the content’s value to the licensee is severely impacted.

What it means

The language used in these clauses identify themes of cooperation, disclosure, and request making. This indicates that fulfilling these licensor obligations may go smoothly with focused attention and communication to the licensee of any changes or gaps in content.

Desired Language

Example clauses:

“Completeness of Content. Licensor will inform Licensee of instances where online content differs from print versions of the Licensed Materials. Where applicable, Licensor will cooperate with Licensee to identify and correct content errors or omissions, and when necessary, the Licensor shall use reasonable efforts to ensure that the online content: (1) is at least as complete as print and other physical format versions of the Licensed Materials; and (2) represents complete, accurate, and timely replications of the corresponding content contained within the print and other physical format versions of such Materials.

In order to facilitate the assessment of completeness of content, Licensor will provide upon request of Licensee a report of the content in the Licensed Materials at the title, issue, chapter, or item level. Licensor will disclose to Licensee content known or found to be missing from the Licensed Materials, including but not limited to images, pages, issues, and chapters.

If online content is a digitized version of print content and differs from the print or other physical format versions of Licensed Materials so as to be substantially less useful to the Licensee or its Authorized Users, the Licensee may seek to terminate this Agreement for breach pursuant to the termination provisions of this Agreement in Section XI, below.” (CDL Model License 2016)

“Notification of Modifications of Licensed Materials. From time-to-time Licensor may add, change, or modify portions of the Licensed Materials, or migrate the Licensed Materials to other formats.  When such changes, modifications, or migrations occur, the Licensor shall give notice of any such changes to Licensee as soon as is practicable, but in no event less than sixty (60) days in advance of modification. If any of the changes, modifications, or migrations renders the Licensed Materials substantially less useful to the Licensee or its Authorized Users, the Licensee may seek to terminate this Agreement for breach pursuant to the termination provisions of this Agreement in Section XI, below.” (CDL Model License 2016)

“Withdrawal of Licensed Materials. Licensor reserves the right to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful, or otherwise objectionable.   Licensor shall give written notice of the withdrawal to the Licensee as soon as is practicable, but in no event less than thirty (30) days in advance of withdrawal, specifying the item or items to be withdrawn.

If any such withdrawal renders the Licensed Materials less useful to Licensee or its Authorized Users, Licensor shall reimburse Licensee for the withdrawal in an amount proportional to the total Fees owed by Licensee for the Licensed Materials under this Agreement.  If any such withdrawal renders the Licensed Materials substantially less useful to Licensee or its Authorized Users, Licensee may seek to terminate this Agreement for breach pursuant to the termination provisions in Section XI, below.” (CDL Model License 2016)

Tricks & Traps

The key is recognizing that the contract creates binding legal obligations for the licensor; in its absence, the licensor would be lawfully permitted to deny access entirely. These provisions ensure that the licensor remains accountable when modifying or withdrawing content, even if such actions are legally permissible. Essentially, the terms allow for the transfer of titles in and out of the licensor’s portfolio, but only within defined boundaries and with corresponding rights and obligations for the licensee. Without these provisions, a licensor could unilaterally modify or remove licensed content, potentially without notice or justification, even when the content is essential for academic research.

A common application of this section arises when the licensor no longer holds copyright ownership of specific materials. While it’s important to anticipate scenarios where the licensor may be required by law to remove content (e.g., if they don’t own it or if the content is obscene or defamatory), the licensor is not automatically relieved of its contractual obligation to provide access in such cases. Although these situations may constitute a breach, they can be anticipated and addressed within the contract, offering protections for the licensee even when the licensor must remove content for legal reasons.

Please note that while the desired language references certain thresholds and calculations, it does not provide specific guidelines on when or how they apply. For example, one clause may allow for reimbursement in the event of substantial content loss, but it does not specify how to calculate the proportional amount. Similarly, another clause mentions the right to terminate but does not clearly define the conditions that would trigger it. These decisions will be left to negotiation between the parties, based on their unique circumstances.

Importance & Risk

The overall importance for academic institutions is that these sections help maintain the integrity and reliability of access to licensed content. The potential risk of sudden loss of access and interruption of ongoing research can profoundly impact on the value of the content. Without proper notification and expressly stated remedies, academic licensees would be at a disadvantage if access to essential resources is disrupted.