(a) A licensee under an access contract that provides for access over a period of time has rights of access to the information as modified from time to time and made commercially generally available commercially by the licensor during the duration of the license. In addition, the following rules apply:

(1) A change in the content of the information is not a breach of contract unless it conflicts with an express term of the contract.

(2) Unless it is subject to a contractual use restrictions in a license, or in the access contract or a record to which the licensee agreed, by manifesting assent or otherwise, information obtained by a licensee through an access contract is free of any use restriction by the licensor other than restrictions resulting from informational property rights of any person, or from other applicable law.

(3) The licensee may make a transitory copy for purposes of viewing or other agreed use but may make a permanent copy of the information accessed only if authorized by the agreement.

(3b) Access In an access contract for access over a period of time, access must be available at times and in a manner:

(A1) conforming to the express terms of the agreement; and

(B2) to the extent not dealt with by the terms of the agreement, in a manner and with a quality that is reasonable in light of the ordinary standards of the business, trade, or industry for the particular type of agreement.

(bc) In an access contract thatwhich, during agreed periods of time, affords the licensee a right of access at times substantially of its own choosing during agreed periods of time, intermittent and occasional failures to have access available during those times do not constitute a breach of contract if they are consistent with:

(1) the express terms of the agreement;

(2) ordinary standards of the business, trade, or industry for the particular type of agreement; or

(3) scheduled downtime,; reasonable needs for maintenance,; reasonable periods of equipment, software, or communications failure,; or events reasonably beyond the licensor's control.

Uniform Law Source: None

Notes to this Draft: Edited for clarity. Proposed deletion of (3) is based on licensee requests.

1. Nature of an Access Contract. This section deals with "access" contracts. Access contracts come in two types. In one, access and contract occur essentially at the same time and there is no on-going relationship between the parties. In the other, a continuous access contract, the licensee has a right to intermittent access at times of its own choosing within the time period of agreed availability. This relationship is illustrated by on-line services such as Westlaw and Lexis. The transaction is not only that the transferee receives the functionality or the information, but that the subject matter be accessible on a consistent basis. A continuous access contract is unlike installment contracts under Article 2 which are segmented into tender-acceptance sequences. Often, the licensor here merely keeps the system on-line and available for the licensee to access when it chooses.

Access contracts are licenses in the pure common law sense that they entail a grant of a right to have use of a facility or resource owned or controlled by the licensor. This involves less of a traditional intellectual property license and more of a modern application of traditional concepts of licensed use of physical resources. See Ticketron Ltd. Partnership v. Flip Side, Inc., No. 92-C-0911, 1993 WESTLAW 214164 (ND Ill. June 17, 1993); Soderholm v. Chicago Nat'l League Ball Club, 587 NE2d 517 (Ill. App. Ct. 1992) (license revocable at will). For a discussion of how one potential vendor handles these problems, see Proposed Rule Regarding Postal Electronic Commerce Service (39 C.F.R. 701.4(b)), 61 F.R. 42219, at 42221 (August 14, 1996) (proposed regulations and terms of use for Postal Service electronic commerce systems). Under current law, these contracts are not within Article 2 or 2A.

2. Basic Obligation. The contract obligation in a continuous access contract is an obligation to make and keep the system available in a reasonable manner consistent with the contract. As indicated in subsection (a)(3), availability standards are subject to contractual specification, but in the absence of contract terms, the appropriate reference is to general standards of the industry involving the particular type of transaction. Thus, a contract involving access to a news and information service would have different accessibility expectations than would a contract to provide remote access to systems for processing air traffic control data. See Reuters Ltd. v. UPI, Inc., 903 F.2d 904 (2d Cir. 1990); Kaplan v. Cablevision of Pa., Inc., 448 Pa. Super. 306, 671 A.2d 716 (Pa. Super. 1996).

3. Content Changes. Subsection (a)(1) outlines an important default rule with respect to the treatment of information obtained through an access contract. The access arrangement does not bind the provider of access to making available specific configurations of information unless the express contract terms require this. This is a significant default rule in reference to multi-element commercial databases provided to licensees by electronic access.

4. Use of Received Information. Subsection (a)(2) deals with use restrictions. Unless there are terms dealing with restrictions on use of the information obtained through access, information obtained by access is received on an unrestricted basis, subject only to intellectual property rights. Thus, for example, if an access contract merely enables access to news articles, but does not limit their use by the licensee, no limitation exists other than as applied under copyright law. In contrast, if the agreement contains license restrictions on use of the articles obtained by the access, those terms would be governed under Article 2B.

Under the proposed deletion of former (a)(3), this Section takes no position and creates no default rule regarding the licensee's ability to make permanent copies of the information accessed.

5. In an on-going or continuous access contract, the transferee may receive substantial value before or despite problems in the overall transaction. The remedies provide for a concept of partial performance. For example, the fact that a company continues to use a remote access database processing system for several years while encountering problems and seeking a replacement system, may allow it to reject the future terms of the contract, but leaves the transferee responsible for the past value received. Hospital Computer Systems, Inc. v. Staten Island Hospital, 788 F. Supp. 1351 (D.N.J. 1992).