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NATIONAL LIBRARY OF MEDICINE

April 27, 2000

Appendix 1

CHECKLIST OF LICENSE PROVISIONS

Title of Material Under Review: __________________________________
Publisher of Material Under Review: __________________________________
Date of Review: __________________________________
Reviewer: __________________________________


Technical Issues:


[Note: In the following questions, if Part “a.” is checked “No,” then you should proceed to the next question.]
(1) a. Is the license purpose clearly stated? Yes No
b. Is the license purpose, as stated, acceptable? Yes No
(2) Are the parties to the license clearly defined as the National Library of Medicine and the holder of the copyrighted material? Yes No
(3) a. Is the definition of those authorized to use the information ("User") clearly stated to include NLM's authorized agents, NLM's on-site and off-site patrons, and NLM staff? Yes No
b. Is the statement of "User" acceptable? Yes No
(4) a. Are there any limitations on the number of users? Yes No
b. Are the limitations on users acceptable? Yes No
(5) a. Are there any limitations on fair use of the information otherwise provided under copyright law? Yes No
b. Are the limitations on fair use acceptable? Yes No
(6) a. Are there restrictions on the rights of users? Yes No
b. Are the restrictions on users' rights acceptable? Yes No
(7) a. Are there any limitations on interlibrary loans? Yes No
b. Are the limitations on interlibrary loans acceptable? Yes No
(8) a. Are there any restrictions on archiving rights? Yes No
b. Are the restrictions on archiving rights acceptable? Yes No
(9) a. Are there any limitations for on-line access? Yes No
b. Are the limitations pertaining to on-line access acceptable? Yes No
(10) a. Are there any limitations on accessing the information? Yes No
b. Are the limitations on information access acceptable? Yes No
(11) a. Are there any limitations on the locations where the information can be accessed? Yes No
b. Are the limitations on access locations acceptable? Yes No
(12) a. If a "site" license, is the definition of "site" clearly written? (For example, the definition may include on-site facilities as well as off-site locations.)? Yes No
b. Is the site definition acceptable? Yes No
(13) a. Are there limitations on downloading and copying information? Yes No
b. Are the downloading and copying limitations acceptable? Yes No
(14) a. Is there a clear statement concerning receipt of any revisions to the information?? Yes No
b. Is the revision receipt statement acceptable? Yes No
(15) a. Are there any limitations on the user's right to enhance or reformat the copyrighted data? Yes No
b. Are the limitations on enhancement or reformat rights acceptable? Yes No
(16) a. Is there a clear statement of any actions required to be taken by NLM to preclude unauthorized access? Yes No
b. Is the statement of required NLM actions to preclude unauthorized access acceptable? Yes No
(17) a. Is there a clear statement of requirements for safeguarding the information? Yes No
b. Is the statement of requirements for safeguarding information acceptable? Yes No
(18) Are there provisions that include a claim to copyright of information that can't be copyrighted under the law (e.g., materials created by the U.S. government or by its employees as part of their official duties)?

N.B. If "Yes," then these provisions must not be accepted?

 Yes No
(19) a. Are there any requirements that would not safeguard the confidentiality of a user's identity and the materials the person accessed? Yes No
b. Are the requirements acceptable? Yes No
(20) a. Is there a clear statement of the disposition of copyrighted information after expiration of the license? Yes No
b. Is the statement acceptable? Yes No
(21) Has the program area's License Review Official coordinated a review of the license terms and conditions with the other NLM program areas? Yes No

Appendix 2

CHECKLIST OF LICENSE PROVISIONS

Title of Material Under Review: ________________________________
Publisher of Material Under Review: ________________________________
Date of Review: ________________________________
Reviewer: ________________________________

Business Issues:


(1) Are there any provisions that impose a liability upon the user?

N.B. If "Yes," these provisions are unacceptable.

 Yes No
(2) Are there any provisions that raise an issue involving potential legal problems?

N.B. If "Yes," these provisions should be reviewed by legal counsel.

 Yes No
(3) a. Are there any warranty provisions? Yes No
b. If answer above was "Yes," are the warranty provisions acceptable? Yes No
(4) Is the term of the license clearly stated and acceptable?

N.B. If "Yes," these provisions are unacceptable.

 Yes No
(5) a. Is a termination provision included? Yes No
b. If answer above was "Yes," is the termination provision acceptable?

N.B. Any provision that allows the licensor to unilaterally terminate the agreement without regard to Contract Disputes Act procedures, including any provision limiting the Government's rights under a termination, is unacceptable since it conflicts with the Federal Acquisition Regulation disputes and termination clauses of the acquisition. Examples of such provisions include those that (1) allow the licensor to terminate the agreement should the Government fail to pay the license fees or other amounts when due, (2) state that termination for any reason would not affect the amount due or paid to the licensor, and (3) limit the Government's remedy should the Government be dissatisfied with the licensed product.

 Yes No
(6) Are there any provisions that violate the Antideficiency Act?

N.B. Any provision that obligates the Government to pay amounts in addition to the stated contract price violates the Antideficiency Act and must be removed because such provisions commit the Government to a future expenditure of funds for which no appropriations have been made. Examples of such impermissible provisions include those that (1) require the Government to pay taxes not included in the negotiated price, (2) allow for automatic renewal of annual licenses for which the Government has to pay, (3) require the Government to indemnify or hold the owner of the copyrighted information harmless in the event of certain lawsuits by third parties, and (4) require the Government to agree to represent the licensor, or pay attorneys fees and expenses, in litigation.

 Yes No
(7) Are there any provisions providing that the license will be interpreted in accordance with the laws of a particular state?

N.B. If "Yes," then the license must be amended by adding: "to the extent that they do not conflict with Federal law."

 Yes No
(8) Does the agreement contain an "Entire Agreement" provision?

N.B. Any provision essentially stating that the license agreement constitutes the entire agreement between the licensee and licensor, that the license agreement is a final expression of the agreement between the parties, or that the license agreement supersedes all prior agreements between the parties (including all oral and written proposals), is unacceptable. The terms and conditions and FAR clauses of the acquisition govern and cannot be superseded by a license agreement.

 Yes No
(9) Does the agreement contain a provision affecting sovereign immunity?

N.B. Any provision that permits the licensor the right to seek injunctive relief against the Government's breach of an agreement is unacceptable since it could result in the Government waiving its sovereign immunity. Such provisions should be deleted or made subject to the disputes clause of the acquisition.

 Yes No
(10) Has consideration been given to the use of FAR clause 52.227-19, Commercial Computer Software -- Restricted Rights, which provides the Government specified rights to use, reproduce, and disclose software containing copyrighted information? Yes No
(11) a. Does the acquisition involve a mass market license (required as part of an employee's official duties)? Yes No
b. If answer above was "Yes," have the terms and conditions of the mass market license been reviewed? Yes No
(12) Is there any other provisions that conflict with the Federal Acquisition Regulation (FAR)?

N.B. Any other provision that conflicts with the FAR is unacceptable. Examples are provisions that (1) unduly limit the Government's rights in data, (2) limit the Government's warranties thereby conflicting with the FAR warranty clause of the acquisition, and (3) make delivery contingent upon some future date or event thereby conflicting with the delivery requirements of the acquisition.

 Yes No
(13) Has a determination been made that the price is fair and reasonable?

N.B. A determination that the price is fair and reasonable must be made by the Contracting Officer prior to award.

 Yes No

Policy on Acquiring Copyrighted Material in Electronic Format

Last reviewed: 20 May 2008
Last updated: 20 May 2008
First published: 27 April 2000
Metadata| Permanence level: Permanent: Stable Content