Riding the Tsunami: Managing the Licensing of Electronic Resources
9/27/1999
NELA Annual Conference
Manchester, NH
Ivy Anderson, Harvard University
Ellen Finnie Duranceau, Massachusetts Institute of Technology
Presented by the New England Technical Services Librarians (NETSL) at the New England Library Association's Annual Conference, Manchester, New Hampshire
Co-sponsored by the NELA Academic Libraries Section and the North American Serials Interest Group (NASIG).
Ivy Anderson, Coordinator for Digital Acquisitions at Harvard University Library, began this program by describing the basic nature of licenses and license negotiation. Functionally, a license is a limited grant of rights under specified conditions, as well as a business agreement defining an economic relationship. Legally, licenses are governed by state contract laws rather than federal copyright law. Licenses, while varying in specific details, generally have a normative structure which includes 1) what is being licensed, 2) to whom, 3) for what purpose, 4) for how long, 5) under what conditions, and 6) at what price. Accepting a license does not mean ownership of the material licensed. Additionally, it is essential to realize that copyright law rarely trumps contract law, although licenses can be pre-empted by federal courts if copyright principles have been violated. Therefore, librarians cannot assume that the fair use provisions of copyright law, in particular, will hold good unless specifically incorporated into a specific agreement. Licensing is also implicated in a number of legislative activities, including the Digital Millennium Copyright Act and proposed database protection acts. The Uniform Computer Information Transactions Act, a piece of model legislation which will be considered for adoption by state legislatures, seeks to ensure that "click-on licenses" will have the force of law. This is an example of a law that potentially places severe restrictions on the activities of end users, reinforcing our responsibility to ensure that the contracts we negotiate have adequately broad provisions for use.
Turning to license negotiation, Anderson recommended the practice of "principled negotiation," as discussed in Roger Fisher and William Ury's influential book, Getting to Yes. This involves identifying the legitimate interests of both parties to a negotiation, taking a problem-solving rather than confrontational approach, and applying objective criteria in order to reach a solution which achieves mutual benefit. The key issues which libraries bring to the table include 1) concerns about the changing rights environment, 2) upholding the uses of materials to serve traditional library purposes, 3) preserving our investment in online information, and 4) changes in the nature of the academic enterprise, including the use of materials to support distance education. Information providers are concerned with 1) intellectual property protection, 2) revenue and market retention, 3) supporting a technical infrastructure, 4) expanding market opportunities, and 5) standing up to increased competition from a variety of sources. However, both parties have shared interests, not the least of which are reaching an agreement, establishing good working relationships and avoiding lawsuits. Referring objectively to relevant standards, such as the AALL/ALA Principles for Licensing Electronic Resources, or the materials found at Yale's LibLicense site, should help achieve win/win agreements.
After detailing the factors entering into the normative structure of a typical contract for electronic resources, Anderson provided an example of how a vendor's proposed contract language might be productively altered through negotiation. For example, the sentence "Licensee agrees that the Database is confidential and intended solely for the internal use of Licensee" effectively prevents the resource from being accessed by library users. An acceptable alternative might be, "Licensee agrees that the Database is intended solely for the use of Licensee and Licensee's Authorized Users." She concluded with advice about managing the process of license negotiation, including the involvement of internal stakeholders and the development of institutional boilerplate language. Finally, she emphasized that we should not be hesitant to assert our free-market role in selecting the products that are most beneficial to us and to our patrons.
Ellen Finnie Duranceau, Assistant Acquisitions Librarian for Digital Resources at the MIT Libraries, continued the program with a discussion of license compliance and tracking methods. Once a license has been negotiated, what precautions are necessary to ensure that both users and staff get the most benefit from an electronic resource, with the fewest contractual difficulties? A crucial point is that "license compliance begins with license negotiation." The impact in practice of user rules, the definition of authorized users, and the burden of educating users all must be kept in mind as terms are worked out with vendors, since these very terms may make compliance difficult or impossible.
Compliance is also affected by the knowledge of contractual terms which staff possess. Communicating this knowledge may be more complicated in environments where license administration is decentralized. Techniques for staff education include scanning licenses into a secure area of the library's web site, raising awareness through newsletters and informal contacts, and providing a copy of the license to the "product sponsor" (the staff member who spearheaded the product purchase) if there is one. Interlibrary loan departments also must be aware of restrictions on electronic materials for lending purposes. We should not take it for granted that staff members understand the difference between contractual rights and fair use provisions, and also must ensure that information technology and other non-library staff understand the relationships between licensing and technological issues.
End-user education is facilitated through developing standard guidelines that describe the majority of licensed resources, with links to specific terms from every web page where such resources appear. It may be useful to provide a link directly to the vendor's site in cases where the vendor's license language is both easy to access and clearly understood. However, in some cases this language will differ from that negotiated locally. User education is more difficult in cases where the vendor places unusually stringent restrictions on access. While some highly restrictive resources have sufficient value to justify their purchase, they impose excessive administrative burdens on staff and are more difficult to explain to users. For example, the vendor may insist on limits on either the type of users, or the type of use, which the existing technology cannot accommodate efficiently. User constraints in such cases may include requiring them to read and sign "sign-off sheets" and physically coming to the library to get a password for onsite use.
Compliance issues also affect web site design and management. It is a good idea, when possible, to maintain the standard compliance statement in one place on the server, rather than being separately coded on every page. This "server-side include" allows for automatic updating on as many web pages as is needed. In general, the design of web pages needs to address the balance between keeping users informed of compliance requirements without alienating them or creating barriers to legitimate access.
It is essential to have a "disaster plan" in place, to prepare for incidents where users deliberately or unintentionally violate licensing terms. This may require contacts with key players, such as network security or intellectual property staff, elsewhere in one's institution. Such a plan was in place at MIT when a visiting faculty member unwittingly committed a large-scale violation of the school's contract with JSTOR. The investigation and satisfactory resolution of that incident actually served to strengthen the relationship between the vendor and client.
Duranceau next discussed the need for a tracking system for license information. This is an essential tool for organizing information regarding license terms, renewals, and so on. The best tracking system for a specific environment will vary with the scale of operations, the number of licenses involved, and a library's organizational structure. There are, nevertheless, common requirements of any successful tracking system: that it reduces or eliminates duplicative data maintenance, is flexible, and allows data to be leveraged for multiple uses including negotiations and use restrictions, a renewal checklist, a budget tool, remote access scripting, and other purposes.
Duranceau concluded with a few reminders: signing the license is not the end of license administration; balancing user education with the access they require is an ongoing challenge; experimentation is probably needed to find an efficient and effective system; and that technological developments will add new obligations even as they aid our efforts.
This well-attended, two-hour presentation concluded with a series of exercises, in which the presenters offered actual specimens of undesirable contract language, and discussed potential improvements with audience members.
David Miller
NETSL Writer/Editor
Levin Library, Curry College
Milton, Mass. 02186
RIDING THE TSUNAMI: Resources
Bibliography
Licensing
Okerson, Ann. "The transition to electronic content licensing: the institutional context in 1997." Presented at Mellon Foundation Scholarly Communication and Technology Conference, Emory University, April 1997. http://www.library.yale.edu/~okerson/mellon.html
Duranceau, Ellen Finnie. "Beyond Print: Revisioning Serials Acquisitions for the Digital Age." The Serials Librarian, 33, nos. 1-2 (1998): 83-106.
Negotiation
Fisher, Roger, Ury, William, Patton, Bruce. Getting to yes: negotiating agreement without giving in. 2nd ed. Penguin Books, 1991.
Licensing Principles and Examples
American Association of Law Libraries, et al. Principles for licensing electronic resources: final draft July 15, 1997. Association of Research Libraries, 1997. http://www.arl.org/scomm/licensing/principles.html
Association of Research Libraries. Licensing electronic resources: strategic and practical considerations for signing electronic information delivery agreements. http://arl.cni.org/scomm/licensing/licbooklet.html
Committee on Institutional Cooperation. Standardized Agreement Language. April 1999. http://www.cic.uiuc.edu/cli/contracts/standardized_agreement_language.htm
European Copyright User Platform. Licensing digital resources: how to avoid the legal pitfalls? Preprint. 9 November 1998. http://www.eblida.org/ecup/docs/warning.html
International Coalition of Library Consortia. http://www.library.yale.edu/consortia
Ibid. Guidelines for statistical measures of usage of web-based indexed, abstracted, and full text resources. November 1998.
Ibid. Guidelines for technical issues in request for proposal (RFP) requirements and contract negotiations. January 1999.
Ibid. Statement of current perspective and preferred practices for the selection and purchase of electronic information. [1998]
LIBLICENSE: licensing digital information, a resource for librarians. Website and Discussion List. Yale University Library. 1996. http://www.library.yale.edu/~llicense/index.shtml
John Cox Associates. Licensingmodels.com. September 1999. http://www.licensingmodels.com
National Educational Site Licensing Initiative (United Kingdom).Model NESLI Site Licence (based on the PA/JISC draft model licence - journals). http://www.nesli.ac.uk/nesli-licence.html
National Humanities Alliance. Basic principles for managing intellectual property in the digital environment. March 1997. http://www.nhalliance.org/ip/ip-principles.html
University of Texas System. Software and database license agreement checklist. http://www.utsystem.edu/ogc/intellectualproperty/dbckfrm1.htm
Special Topics
Uniform Computer Information Transactions Act (formerly UCC 2B)
Association of Research Libraries. "A Quick Look at the Uniform Computer Information Transactions Act (UCITA)." July 1999. http://www.arl.org/info/frn/copy/ucita.html
Samuelson, Pamela. "Does Information Really Want to Be Licensed?" JEP: the Journal of Electronic Publishing, vol. 4, Issue 3, March 1999. http://www.press.umich.edu/jep/04-03/samuelson.html
Uniform Computer Information Transactions Act. [proposed model legislation]. July 1999. http://www.law.upenn.edu/bll/ulc/ucita/ucita_99.htm
Copyright
Lutzger, Arnold P. "In the Curl of the Wave: What the Digital Millennium Copyright Act and Term Extension Act Mean for the Library and Education Community." ARL Bimonthly Report, 203, April, 1999. http://www.arl.org/newsltr/203/curl.html
Database Protection
Database Data [web site]. http://www.databasedata.org
Rosenberg, Scott. "Who owns the New York Times Bestseller List?" Salon.com, June 23, 1999. http://www.salon.com/tech/col/rose/1999/06/23/times_bestsellers/index.html
Distance Education
"Distance Education & the Copyright Law." ARL Bimonthly Report, 204, June, 1999. http://www.arl.org/newsltr/204/distcopy.html U.S. Copyright Office. Copyright Office Study on Distance Education. May 1999.
http://www.loc.gov/copyright/disted
URLs updated August 15, 2001.
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