Submission Date:
Question:
If a signed license says that authorized users for remote access include "current students, faculty, and staff only" or "active faculty, students, and staff only" or even "bona fide current faculty, staff, and students only" can we conclude that terminated faculty would not be legally allowed to have remote access after their termination? (Walk-ins are a separate matter; here we are looking at remote access). Some licenses allow "affiliates" and some even say that it's up to the institution to determine who gets credentials to allow remote access, but we have more than 20 licenses that state in one way or another "current faculty" only. I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources.
Am I right?
Answer:
To give readers a bit of context about my answer to this: between 2006 and 2017, I was an in-house attorney at a university. During that time, I hobnobbed with a lot of other higher education attorneys; first, because the hobnobbing helped keep us current in our practice, and second, because attorneys--like murders of crows or parliaments of rooks--are social creatures, who just need to talk about the law.
One of the many higher education/law topics that could turn a flock of lawyers into a full-fledged symposium was the issue of what is meant by the term "faculty."[1]
Are adjuncts "faculty"?[2] Are grad student instructors "faculty"? If a full-time staff member teaches a course or two, are they "faculty?"
Complicating the issue is that the definition of "faculty" will vary from institution to institution, based on union agreements and accreditor criteria--to say nothing of state law and regulations.
And finally, a wrinkle can be created when a "faculty" member leaves regular employment with a college or university, but assumes a new (and often under-defined) status, such as:
- Retired faculty (whose retirement is governed by contract or policy)
- Retired faculty with honorary title "Emeritus" (a title which may or may not convey benefits)
- Terminated but "consulting" faculty who have a formal continuing affiliation with the institution (by contract or policy)
- Terminated but "proximate" faculty who don't have a formal continuing affiliation with the institution, but for whatever reason, may retain the trappings of their former affiliation (network access, library card, the computer they used when they were employed, etc.).
This issue of undefined status is the type of topic that will occasion lots of discussion and perhaps another round of potables at a lawyer’s kettle.[3] Why the fuss? Examples exactly like the one brought up in this question. Lawyers hate it when we can't put things into minutely defined boxes to process through a legal formula (after all, the order we impose by doing so is the entire reason for our professional existence).[4]
Here are some examples of what "disorder" a clause like those in the question is meant, by the content provider, to avoid:
- The licensed content access flowing to any person with privileges at the institution's library (since many institutions allow community members to get cards);
- The licensed content access flowing to a large body of people affiliated with the institution, such as alumni or boosters;
- The content access flowing to groups or people with only a loose association with the institution (for instance, sometimes student clubs are open to community members); and
- Any other way the institution could allow access that could deprive the licensor of revenue.
Of course, just what is barred, and how "former faculty" access could violate it, is highly fact-specific. So let's take a look at the member's specific question:
...we have more than 20 licenses that state in one way or another "current faculty" only. I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources. Am I right?
Yes, you're right: if a faculty member is terminated and has no ongoing affiliation as a faculty member (even a tenuous affiliation, such as an honorary appointment or "emeritus" designation, which could give some slim justification), then there is no basis to claim they are "current faculty."
In my experience talking with aeries of higher ed attorneys, the most common way this type of concern is raised is when a faculty member is terminated, and asks to take their institutionally-issued laptop computer with them (often because it is the sole computer they have)--continuing access to servers and databases that would otherwise be cut off. Many places want to do the nice thing and say "yes," but there's a catch: the institutionally-issued computer usually has proprietary software and access that is only available to (you guessed it) current employees. (In addition, if the faculty member was teaching, it might house a lot of content protected by FERPA. So, this question of ongoing access to content only licensed for use by current employees is often the tip of a big compliance iceberg.)[5]
But at this point, I have passed from answering the question (remember? The answer was "Yes!") and moved onto the practical considerations. Practical considerations, of course, are where many of the devilish details reside, but having answered the question, we'll leave it there for now.
Hopefully, this answer from within the conclave of the higher education law has provided some assistance and clarity. I wish the member well; raising this type of contract compliance concern, which can cut across departments at a college or university, is rarely easy, but it's the right thing to do for an institution.
Thanks for a good question.
[1] Other hot topics that guaranteed a searing debate included: how to negotiate contracts with musical acts, how to build support for meeting accreditation requirements into institutional policy, and the ups and downs of enforcing campus parking policies.
[2] Yes, and damn important faculty, too.
[3] Yes, I had fun looking up the proper titles for flocks of birds. https://www.thespruce.com/flock-names-of-groups-of-birds-386827
[4] That, and to provide endless fodder for television dramas, based on our glamorous lifestyle and impeccable fashion sense.
[5] If the problem is caused by retention of a computer post-termination, the best way to address it is through a policy that manages this type of situation up-front. For such a policy, there are really only two options: wipe the licensed content and all institutional information from the computer before the former faculty member is allowed to keep it, OR make it clear that institutional computers cannot be transferred after termination (neither of these solutions, of course, is likely within the authority of the institution's library staff to implement. Having a good working relationship with a head academic officer, and/or HR, can allow you to flag this issue to people in a position to do something about it.).
Tag:
Academic Libraries, Digital Access, E-Books and Audiobooks, Licensing
