6 Use by persons other than Authorized Users

Desired Result:

This is typically a short and simple clause and there shouldn’t be much to substantively negotiate. Essentially, the publisher is going to restrict use of the Licensed Materials to only people defined as Authorized Users in the contract. Since the material is being licensed for use only by your specific organization or information community, this should be an easily agreeable point between Licensor and Licensee. It’s not beneficial for either party to have non-authorized users accessing the material (except in the case of scholarly sharing clauses, which enable access for non-authorized users, but only with the assistance of an Authorized User) since this poses a security threat for both parties and could result in non-permitted use of the Licensed Material that would put the Licensee in breach of the contract.

Desired Language:

“Licensee shall not knowingly permit anyone other than Authorized Users to access the Licensed Materials.” (CDL Model License)

Tricks and Traps:

Primarily, it’s crucial to make sure that all necessary user groups are included within your definition of “Authorized Users,” since all others will be subsequently excluded. In addition to staff and students, Authorized Users could also include walk-ins, alumni, or affiliate groups/organizations, as long as they’re included in the definition or elsewhere in the contract (such as under Authorized Sites). In order for Licensee or Authorized Users to be share the Licensed Materials with any other third parties who do not fall under the definition of Authorized Users, scholarly sharing will need to be preserved as a permitted use.

It’s helpful to include the word “knowingly” in the desired language, so that the Licensee’s obligation of ensuring that access is restricted to only Authorized Users is limited to what the Licensee can reasonably control. For example, the Licensee may reasonably ensure that the materials can only be accessed via certain IP addresses or authentication methods in order to prevent outside users from accessing the material. However, if an Authorized User shared their password with someone outside of the organization, unbeknownst to the Licensee, then the Licensee would not be in violation of this clause as they did not knowingly permit the unauthorized access.

Importance and Risk:

This clause is important because it establishes the basic boundaries and obligations regarding access to the Licensed Materials, even though there will likely be other clauses that touch upon the specifics of said access and authorized user groups. This clause, if written in a self-protective manner, can also safeguard the Licensee from breach of contract due to unforeseen use of the Licensed Materials by non-Authorized Users. Since the Licensee may not have complete control over its Authorized Users’ actions, limiting the statement so that the Licensee is only held responsible for acts that are willful is a strong defensive strategy.