82 FR 29003 - Library of Congress License Agreements

LIBRARY OF CONGRESS

Federal Register Volume 82, Issue 122 (June 27, 2017)

Page Range		29003-29004
FR Document		2017-13342

The Library of Congress is issuing this final rule regarding license agreements and similar agreements and instruments entered into by it. The rule will prevent the Library from potentially violating the Anti-Deficiency Act and other restrictions under Federal law, preserve the Library's rights under copyright law in regard to electronic resources and software, and streamline the Library's contracting and collections acquisitions processes for these electronic resources and software.

Federal Register, Volume 82 Issue 122 (Tuesday, June 27, 2017)

[Federal Register Volume 82, Number 122 (Tuesday, June 27, 2017)]
[Rules and Regulations]
[Pages 29003-29004]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-13342]


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LIBRARY OF CONGRESS

36 CFR Part 701

[Docket No. LOC 2017-1]


Library of Congress License Agreements

AGENCY: Library of Congress.

ACTION: Final rule.

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SUMMARY: The Library of Congress is issuing this final rule regarding 
license agreements and similar agreements and instruments entered into 
by it. The rule will prevent the Library from potentially violating the 
Anti-Deficiency Act and other restrictions under Federal law, preserve 
the Library's rights under copyright law in regard to electronic 
resources and software, and streamline the Library's contracting and 
collections acquisitions processes for these electronic resources and 
software.

DATES: Effective June 27, 2017.

FOR FURTHER INFORMATION CONTACT: Elizabeth A. Pugh, General Counsel, 
Office of the General Counsel, Library of Congress, Washington, DC 
20540-1050. Telephone No. (202) 707-6316.

SUPPLEMENTARY INFORMATION: The Librarian of Congress is authorized to 
make regulations with respect to the Library of Congress (2 U.S.C. 
136). Since neither the Federal Register Act nor the Administrative 
Procedure Act has binding effect on the legislative branch, the Library 
of Congress is not required to publish its regulations in the CFR. 
However, as the purpose of the CFR is to notify industry, general 
business, and the people (Toledo, P. & W.R.R. v. Stover, 60 F. Supp. 
587 (S.D. Ill. 1945)), it is appropriate for the Library to publish 
those regulations which affect the rights and responsibilities of, and 
restrictions on, the public. Further, 1 CFR 5.3 allows documents ``in 
the public interest'' to be published in the Federal Register even if 
they are not required to be published under the Federal Register Act 
and 1 CFR 5.2.
    The regulation governs license agreements and similar agreements 
and instruments entered into by the Library of Congress. The regulation 
establishes terms for these agreements intended to prevent the Library 
from incurring obligations that would potentially violate the Anti-
Deficiency Act and other restrictions imposed by Federal law, to 
preserve the Library's rights under U.S., foreign, and international 
copyright law, and to protect the Library's ability to make use of 
computer software and other materials it licenses. In addition, this 
regulation is intended to streamline the contracting and collections 
acquisitions processes for the Library and for licensors by enabling 
the Library to avoid the need to negotiate specific terms addressing 
these matters in each license agreement into which it enters.

List of Subjects in 36 CFR Part 701

    Libraries, Government contracts, Government procurement.

Final Regulation

    For the reasons set forth in the preamble, the Library of Congress 
amends 36 CFR part 701 as follows:

PART 701--PROCEDURES AND SERVICES

0
1. The authority citation for part 701 continues to read:

    Authority:  2 U.S.C. 136; 18 U.S.C. 1017.


0
2. Add Sec.  701.7 to read as follows:


Sec.  701.7  Certain terms in license agreements.

    (a) Definitions. (1) Computer software has the meaning provided in 
48 CFR 2.101.
    (2) License agreement means any license agreement, subscription 
agreement, end user license agreement (EULA), terms of service (TOS), 
or similar legal instrument or agreement.
    (b) Purpose. The purpose of this part is to accommodate the Library 
of Congress' legal status as a Federal agency of the United States and 
assure that the Library of Congress, when entering into license 
agreements, follows applicable Federal laws and regulations, including 
those related to fiscal law constraints, governing law, venue, and 
legal representation; to preserve the Library's rights under U.S., 
foreign, and international copyright law; and to preserve the Library's 
ability to make use of computer software and other materials it 
licenses.
    (c) Applicability. (1) The clauses set forth in paragraph (d) of 
this section are deemed to be inserted into each license agreement to 
which the Library of Congress is a party with the same force and effect 
as if set forth therein, notwithstanding any provision thereof to the 
contrary. In addition, the clauses in paragraph (e) of this section are 
deemed to be inserted into each license

[[Page 29004]]

agreement to which the Library of Congress is a party, other than 
license agreements for the license of computer software to the Library 
of Congress, with the same force and effect as if set forth therein, 
notwithstanding any provision thereof to the contrary. If any term of a 
license agreement (at the time the license agreement is executed or as 
it may be amended in the future) conflicts with or imposes any 
additional obligations on the Library of Congress with respect to a 
matter addressed by any of the clauses that are deemed to have been 
inserted into the license agreement as described above, the following 
shall apply:
    (i) Such term is unenforceable against the Library of Congress 
unless otherwise expressly authorized by Federal law and specifically 
authorized under applicable Library of Congress regulations and 
procedures;
    (ii) Neither the Library of Congress nor its employees shall be 
deemed to have agreed to such term by virtue of the term appearing in 
any license agreement;
    (iii) Such term is stricken from the license agreement; and
    (iv) The terms of the clauses of this section incorporated in the 
license agreement shall control.
    (2) The Library of Congress is not bound by a license agreement 
unless it is entered into on behalf of the Library of Congress by a 
person having the authority to contract referred to in Sec.  701.4.
    (3) The Library of Congress is bound only by terms that are in 
writing and included in license agreements (including hard copy and 
electronic license agreements) entered into on behalf of the Library of 
Congress by a person having the authority to contract referred to in 
Sec.  701.4.
    (4) If any provisions are invoked through an ``I agree'' click box 
or other comparable mechanism (e.g., ``click-wrap'' or ``browse-wrap'' 
agreements), such provisions do not bind the Library of Congress or any 
Library of Congress authorized end user to such provisions, unless 
agreed to on behalf of the Library of Congress by a person having the 
authority to contract referred to in Sec.  701.4.
    (d) Provisions applicable to all license agreements. The following 
clauses are deemed to be inserted into each license agreement to which 
the Library of Congress is a party:

Unauthorized Obligations

    The Library of Congress shall not be bound by any provision that 
may or will cause the Library of Congress or its employees to make 
or authorize an expenditure from, or create or authorize an 
obligation under, any appropriation or fund in excess of the amount 
available in the appropriation or fund, that would create an Anti-
Deficiency Act (31 U.S.C. 1341) violation. Such provisions include, 
for example, automatic renewal of the agreement, penalty payments by 
the Library of Congress, indemnification by the Library of Congress, 
and payment by the Library of Congress of taxes or surcharges not 
specifically included in the price for the license.

Liability

    The liability of the Library of Congress and its obligations 
resulting from any breach of this agreement, or any claim arising 
from this agreement, shall be determined exclusively under 28 U.S.C. 
1346, 28 U.S.C. 1491, or other governing Federal authority.

Representation

    The conduct of, and representation of the Library of Congress 
in, any litigation in which the Library of Congress is a party, or 
is interested, are reserved exclusively to the United States 
Department of Justice as provided for in 28 U.S.C. 516.

Governing Law

    This agreement shall be governed for all purposes by and 
construed in accordance with the Federal laws of the United States 
of America.

Venue

    Venue for any claim under this agreement shall lie exclusively 
in the Federal courts of the United States, as provided in 28 U.S.C. 
1346 and 28 U.S.C. 1491. Any action commenced in a State court that 
is against or directed to the Library of Congress may be removed by 
the United States Government to Federal district court in accordance 
with 28 U.S.C. 1442.

Dispute Resolution

    The Library of Congress does not agree to submit to any form of 
binding alternative dispute resolution, including, without 
limitation, arbitration.

Order of Precedence

    Notwithstanding any provision of this agreement (including any 
addendum, schedule, appendix, exhibit, or other attachment to or 
order issued under this agreement), in the event of any conflict 
between the provisions of this agreement and the provisions of the 
clauses incorporated into this agreement pursuant to 36 CFR 701.7, 
the provisions of the clauses incorporated pursuant to 36 CFR 701.7 
shall control.

Commercial Computer Software

    As used in this clause, ``commercial computer software'' has the 
meaning provided in 48 CFR 2.101.
    The provisions of the clause regarding the license of commercial 
computer software set forth in 48 CFR 52.227-19 are incorporated 
into this agreement with the same force and effect as if set forth 
herein, with all necessary changes deemed to have been made, such as 
replacing references to the Government with references to the 
Library of Congress.

    (e) Additional provisions applicable to license agreements other 
than for license of computer software. In addition to the clauses 
deemed to be incorporated into license agreements pursuant to paragraph 
(d) of this section, the following clauses are deemed to be inserted 
into each license agreement to which the Library of Congress is a 
party, other than for the license of computer software to the Library 
of Congress:

Unauthorized Uses

    The Library of Congress shall not be liable for any unauthorized 
uses of materials licensed by the Library of Congress under this 
agreement by Library of Congress patrons or by unauthorized users of 
such materials, and any such unauthorized use shall not be deemed a 
material breach of this agreement.

Rights Under Copyright Law

    The Library of Congress does not agree to any limitations on its 
rights (e.g., fair use, reproduction, interlibrary loan, and 
archiving) under the copyright laws of the United States (17 U.S.C. 
101 et seq.), and related intellectual property rights under foreign 
law, international law, treaties, conventions, and other 
international agreements.

    Dated: June 20, 2017.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2017-13342 Filed 6-26-17; 8:45 am]
BILLING CODE 1410-10-P

Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Rules and Regulations 29003

vessels of the event, and general users event sponsor to grant general obligations that would potentially
of the waterway. Our regulation for the permission to enter the regulated area. violate the Anti-Deficiency Act and
Southern California Annual Firework Dated: June 10, 2017. other restrictions imposed by Federal
Events for the San Diego Captain of the E.M. Cooper, law, to preserve the Library’s rights
Port Zone identifies the regulated area under U.S., foreign, and international
Commander, U.S. Coast Guard, Acting
for this event. During the enforcement Captain of the Port San Diego. copyright law, and to protect the
period, no spectators shall anchor, Library’s ability to make use of
[FR Doc. 2017–13431 Filed 6–26–17; 8:45 am]
block, loiter in, or impede the transit of computer software and other materials it
BILLING CODE 9110–04–P
official patrol vessels in the regulated licenses. In addition, this regulation is
area without the approval of the Captain intended to streamline the contracting
of the Port, or his designated and collections acquisitions processes
representative. LIBRARY OF CONGRESS for the Library and for licensors by
36 CFR Part 701 enabling the Library to avoid the need
DATES: The regulations in 33 CFR
to negotiate specific terms addressing
165.1123 will be enforced from 8 p.m. [Docket No. LOC 2017–1] these matters in each license agreement
through 10 p.m. on July 4, 2017, for Item
into which it enters.
3 in Table 1 of Section 165.1123. Library of Congress License
FOR FURTHER INFORMATION CONTACT: If Agreements List of Subjects in 36 CFR Part 701
you have questions on this publication, AGENCY: Library of Congress. Libraries, Government contracts,
call or email Lieutenant Robert Cole, Government procurement.
ACTION: Final rule.
Waterways Management, U.S. Coast
Guard Sector San Diego, CA; telephone Final Regulation
SUMMARY: The Library of Congress is
619–278–7656, email issuing this final rule regarding license For the reasons set forth in the
D11MarineEventsSD@uscg.mil. agreements and similar agreements and preamble, the Library of Congress
SUPPLEMENTARY INFORMATION: The Coast instruments entered into by it. The rule amends 36 CFR part 701 as follows:
Guard will enforce the regulations in 33 will prevent the Library from potentially
PART 701—PROCEDURES AND
CFR 165.1123 for a safety zone on the violating the Anti-Deficiency Act and
SERVICES
waters of Glorietta Bay, CA for the other restrictions under Federal law,
Coronado Glorietta Bay Fourth of July preserve the Library’s rights under ■ 1. The authority citation for part 701
Fireworks in 33 CFR 165.1123, Table 1, copyright law in regard to electronic continues to read:
Item 3 of that section, from 8 p.m. resources and software, and streamline
Authority: 2 U.S.C. 136; 18 U.S.C. 1017.
through 10 p.m. on July 4, 2017. This the Library’s contracting and collections
enforcement action is being taken to acquisitions processes for these ■ 2. Add § 701.7 to read as follows:
provide for the safety of life on electronic resources and software.
§ 701.7 Certain terms in license
navigable waterways during the DATES: Effective June 27, 2017. agreements.
fireworks event. Our regulation for FOR FURTHER INFORMATION CONTACT: (a) Definitions. (1) Computer software
Southern California Annual Firework Elizabeth A. Pugh, General Counsel, has the meaning provided in 48 CFR
Events for the San Diego Captain of the Office of the General Counsel, Library of 2.101.
Port Zone identifies the regulated area Congress, Washington, DC 20540–1050. (2) License agreement means any
for the this event. Under the provisions Telephone No. (202) 707–6316. license agreement, subscription
of 33 CFR 165.1123, a vessel may not SUPPLEMENTARY INFORMATION: The agreement, end user license agreement
enter the regulated area, unless it Librarian of Congress is authorized to (EULA), terms of service (TOS), or
receives permission from the Captain of make regulations with respect to the similar legal instrument or agreement.
the Port, or his designated Library of Congress (2 U.S.C. 136). Since (b) Purpose. The purpose of this part
representative. Spectator vessels may neither the Federal Register Act nor the is to accommodate the Library of
safely transit outside the regulated area Administrative Procedure Act has Congress’ legal status as a Federal
but may not anchor, block, loiter, or binding effect on the legislative branch, agency of the United States and assure
impede the transit of participants or the Library of Congress is not required that the Library of Congress, when
official patrol vessels. The Coast Guard to publish its regulations in the CFR. entering into license agreements,
may be assisted by other Federal, State, However, as the purpose of the CFR is follows applicable Federal laws and
or Local law enforcement agencies in to notify industry, general business, and regulations, including those related to
enforcing this regulation. the people (Toledo, P. & W.R.R. v. fiscal law constraints, governing law,
This document is issued under Stover, 60 F. Supp. 587 (S.D. Ill. 1945)), venue, and legal representation; to
authority of 33 CFR 165.1123 and 5 it is appropriate for the Library to preserve the Library’s rights under U.S.,
U.S.C. 552(a). In addition to this publish those regulations which affect foreign, and international copyright law;
document in the Federal Register, the the rights and responsibilities of, and and to preserve the Library’s ability to
Coast Guard will provide the maritime restrictions on, the public. Further, 1 make use of computer software and
community with advance notification of CFR 5.3 allows documents ‘‘in the other materials it licenses.
this enforcement period via the Local public interest’’ to be published in the (c) Applicability. (1) The clauses set
Notice to Mariners and local advertising Federal Register even if they are not forth in paragraph (d) of this section are
by the event sponsor. required to be published under the deemed to be inserted into each license
pmangrum on DSK3GDR082PROD with RULES

If the Captain of the Port or his Federal Register Act and 1 CFR 5.2. agreement to which the Library of
designated representative determines The regulation governs license Congress is a party with the same force
that the regulated area need not be agreements and similar agreements and and effect as if set forth therein,
enforced for the full duration stated on instruments entered into by the Library notwithstanding any provision thereof
this document, he or she may use a of Congress. The regulation establishes to the contrary. In addition, the clauses
Broadcast Notice to Mariners or other terms for these agreements intended to in paragraph (e) of this section are
communications coordinated with the prevent the Library from incurring deemed to be inserted into each license

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29004 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Rules and Regulations

agreement to which the Library of or authorize an obligation under, any (e) Additional provisions applicable
Congress is a party, other than license appropriation or fund in excess of the to license agreements other than for
agreements for the license of computer amount available in the appropriation or license of computer software. In
fund, that would create an Anti-Deficiency
software to the Library of Congress, with addition to the clauses deemed to be
Act (31 U.S.C. 1341) violation. Such
the same force and effect as if set forth provisions include, for example, automatic incorporated into license agreements
therein, notwithstanding any provision renewal of the agreement, penalty payments pursuant to paragraph (d) of this
thereof to the contrary. If any term of a by the Library of Congress, indemnification section, the following clauses are
license agreement (at the time the by the Library of Congress, and payment by deemed to be inserted into each license
license agreement is executed or as it the Library of Congress of taxes or surcharges agreement to which the Library of
may be amended in the future) conflicts not specifically included in the price for the Congress is a party, other than for the
with or imposes any additional license. license of computer software to the
obligations on the Library of Congress Liability Library of Congress:
with respect to a matter addressed by The liability of the Library of Congress and
any of the clauses that are deemed to its obligations resulting from any breach of Unauthorized Uses
have been inserted into the license this agreement, or any claim arising from this The Library of Congress shall not be liable
agreement as described above, the agreement, shall be determined exclusively for any unauthorized uses of materials
following shall apply: under 28 U.S.C. 1346, 28 U.S.C. 1491, or licensed by the Library of Congress under
(i) Such term is unenforceable against other governing Federal authority. this agreement by Library of Congress patrons
or by unauthorized users of such materials,
the Library of Congress unless otherwise Representation and any such unauthorized use shall not be
expressly authorized by Federal law and The conduct of, and representation of the deemed a material breach of this agreement.
specifically authorized under applicable Library of Congress in, any litigation in
Library of Congress regulations and which the Library of Congress is a party, or Rights Under Copyright Law
procedures; is interested, are reserved exclusively to the The Library of Congress does not agree to
(ii) Neither the Library of Congress United States Department of Justice as any limitations on its rights (e.g., fair use,
nor its employees shall be deemed to provided for in 28 U.S.C. 516. reproduction, interlibrary loan, and
have agreed to such term by virtue of archiving) under the copyright laws of the
Governing Law United States (17 U.S.C. 101 et seq.), and
the term appearing in any license This agreement shall be governed for all related intellectual property rights under
agreement; purposes by and construed in accordance foreign law, international law, treaties,
(iii) Such term is stricken from the with the Federal laws of the United States of conventions, and other international
license agreement; and America. agreements.
(iv) The terms of the clauses of this Venue Dated: June 20, 2017.
section incorporated in the license
Venue for any claim under this agreement Approved by:
agreement shall control.
shall lie exclusively in the Federal courts of Carla D. Hayden,
(2) The Library of Congress is not the United States, as provided in 28 U.S.C.
bound by a license agreement unless it Librarian of Congress.
1346 and 28 U.S.C. 1491. Any action
is entered into on behalf of the Library [FR Doc. 2017–13342 Filed 6–26–17; 8:45 am]
commenced in a State court that is against or
of Congress by a person having the directed to the Library of Congress may be BILLING CODE 1410–10–P
authority to contract referred to in removed by the United States Government to
§ 701.4. Federal district court in accordance with 28
(3) The Library of Congress is bound U.S.C. 1442. POSTAL SERVICE
only by terms that are in writing and Dispute Resolution
included in license agreements 39 CFR Part 20
The Library of Congress does not agree to
(including hard copy and electronic submit to any form of binding alternative
license agreements) entered into on International Mail Manual;
dispute resolution, including, without
behalf of the Library of Congress by a limitation, arbitration.
Incorporation by Reference
person having the authority to contract AGENCY: Postal ServiceTM.
Order of Precedence
referred to in § 701.4. ACTION: Final rule.
(4) If any provisions are invoked Notwithstanding any provision of this
agreement (including any addendum, SUMMARY: The Postal Service announces
through an ‘‘I agree’’ click box or other
schedule, appendix, exhibit, or other
comparable mechanism (e.g., ‘‘click- attachment to or order issued under this
the issuance of the Mailing Standards of
wrap’’ or ‘‘browse-wrap’’ agreements), agreement), in the event of any conflict the United States Postal Service,
such provisions do not bind the Library between the provisions of this agreement and International Mail Manual (IMM®)
of Congress or any Library of Congress the provisions of the clauses incorporated dated January 22, 2017, and its
authorized end user to such provisions, into this agreement pursuant to 36 CFR incorporation by reference in the Code
unless agreed to on behalf of the Library 701.7, the provisions of the clauses of Federal Regulations.
of Congress by a person having the incorporated pursuant to 36 CFR 701.7 shall DATES: This final rule is effective on
authority to contract referred to in control. June 27, 2017. The incorporation by
§ 701.4. Commercial Computer Software reference of the IMM is approved by the
(d) Provisions applicable to all license As used in this clause, ‘‘commercial Director of the Federal Register as of
agreements. The following clauses are computer software’’ has the meaning June 27, 2017.
deemed to be inserted into each license provided in 48 CFR 2.101. FOR FURTHER INFORMATION CONTACT:
pmangrum on DSK3GDR082PROD with RULES

agreement to which the Library of The provisions of the clause regarding the Lizbeth Dobbins, (202) 268–3789.
Congress is a party: license of commercial computer software set
SUPPLEMENTARY INFORMATION: The
forth in 48 CFR 52.227–19 are incorporated
Unauthorized Obligations into this agreement with the same force and International Mail Manual was issued
The Library of Congress shall not be bound effect as if set forth herein, with all necessary on January 22, 2017, and was updated
by any provision that may or will cause the changes deemed to have been made, such as with Postal Bulletin revisions through
Library of Congress or its employees to make replacing references to the Government with January 5, 2017. It replaced all previous
or authorize an expenditure from, or create references to the Library of Congress. editions. The IMM continues to enable

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Document Created: 2018-11-14 10:15:05
Document Modified: 2018-11-14 10:15:05

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective June 27, 2017.
Contact		Elizabeth A. Pugh, General Counsel, Office of the General Counsel, Library of Congress, Washington, DC 20540-1050. Telephone No. (202) 707-6316.
FR Citation		82 FR 29003
CFR Associated		Libraries; Government Contracts and Government Procurement