| Editor: Richard M. Dougherty,
University of Michigan, Ann P. Dougherty Contributing Editors: Mignon Adams, University of the Sciences in Philadelphia; Steve Marquardt, South Dakota State University; William Miller, Florida Atlantic University; Maureen Pastine, Temple University |
| Vol. 19, No. 6 | July 1999 |
License at Your Own Risk
by Jeanette McVeigh
[Editor’s note: In this era of digital publications the rules of access and ownership of information are being transformed as licensing arrangements replace traditional library purchases. As McVeigh explains, many faculty and students are learning that digital publications are also introducing a lot of irritating frustrations, and librarians are learning that negotiating and paying for licenses can cost a great deal of time and money. The amount of money tied up in licenses is rapidly becoming significant; it is important that more faculty and academic administrators understand this evolving situation.]
It’s been a long day in the lab and the classroom and Professor Cell decides to go home. During the drive home, he remembers that he still needs to check the citation for the article he has co-authored that must go into the mail tomorrow. Once home, he goes straight to his office and logs in to the university library’s web page. Scrolling down the page he clicks on the medical database he used. “Access permission denied” flashes on the screen. Disbelieving, he tries again. The same message appears. He calls the library and, after a transfer or two, a sympathetic voice tells him, “I’m sorry, but our license agreement only allows on-campus use of that database. If you give me the information you have, I’ll search it for you.” “I thought we were The Electronic University,” replies Professor Cell. “We are,” replies the librarian, “as long as you are on campus.” Meanwhile, one of Professor Cell’s co-authors has emailed to him the citation, complete with full text of the article, which she had gotten from one of her library’s electronic journals collection.
Back at the university, a colleague of Professor Cell’s in the chemistry department has used a drug database for some critical information on the grant work he’s doing that he is sure will be patented. What he doesn’t know is that the library’s license agreement with the database vendor is for teaching and research but only so long as the information is not used to develop a patent. But he wasn’t sure when he started that the grant was going to produce a patent, so who even thought about bringing up the issue. Without thinking, each of these faculty members has entered the murky waters of the license agreement and two out of three have violated their library’s agreements.
Students can be equally vulnerable. For instance, a graduate student downloads an article from an electronic journal that she accessed on the university’s web page. Using the wonders of modern technology, she emails it to a friend. Unknowingly, that simple act, which seems so natural even to the not-so-technologically astute student, violated the terms of the contract between the journal’s publisher and the university. Under this agreement, the publisher now has the right to terminate all access to everyone on the campus. An extreme measure and probably not one, for reasons of good will, that would be pursued by the publisher. But, under the terms of the contract, the publisher would have the right. What would have been considered a legitimate, limited personal use for ”educational purposes” of a printed text can be a serious “breach” of the “terms of agreement” in the digital world. Negotiating for electronic information has left behind the more familiar ground of copyright law for the swirling waters of contracts and licenses.
Library Reproduction Rights and Fair Use
When purchasing and lending print material (books and journals) educational institutions and libraries have relied upon two concepts in the Copyright Act of 1976—library reproduction rights and fair use. Briefly put, “library reproduction rights” recognizes the public’s right to make limited use of copyrighted works for educational purposes for free and without seeking permissions. “Fair use” allows limited or personal use of copyrighted material as long as it does not interfere with the author’s ability to benefit from the work. The public’s use is “fairly” balanced with the author’s or copyright owner’s right to profit from the created work. The courts further decided the limits of “fair use” and the extent of the rights for reproduction.Now the problem is: what were once standard in a library collection—encyclopedias, journals and books—are now available, sometimes exclusively, on the World Wide Web. In the case of digitized text that can be shared via networked computers on the Internet with thousands of persons, how are the copyright owners’ rights to be protected. How does one control reproduction on the Internet?
Authors and publishers are understandably nervous about the possibility of loss of revenue. On the academic side, distance or distributed learning is pushing the boundaries of what “fair use” really means.
The digital environment is a dynamic one, with waves of technological change not washing but crashing in on one another. The copyright law cited above, publishers believe, is a poor match for the electronic marketplace of 1999. Yet, as product prices escalate and budgets shrink, educational institutions feel the need to cling more desperately to their right to distribute as well as possess purchased information. Electronic reserve modules can make course material available 24 hours a day at the desktop. As geography, the concept of “where,” has become less and less relevant on the Internet; however, ironically it has become a major issue in the dispute over the legitimate use of purchased electronic materials. In print, royalties are paid for copies borrowed of articles in excess of five and permissions to be obtained for other use of print material. If the article and transfer is electronic and the use is by one or one hundred simultaneous users, where does the “fair use” reside?
“Frequently the sales representative
who sends the license to sign has made statements
about use or distribution not reiterated in print and
sometimes contradicted by it.”
Negotiating a License
The publishers’ and vendors’ response to this uncertainty was to license rather than sell their digital information. Rather than purchase the book or journal outright, the library was granted “access” for a specified period of time at a specified price. The license is a contract in which the terms of use of the product sometimes can run contrary to a library’s understanding of the concept of “fair use.” The overall appearance of most license agreements is one in which the language is locked in and tight. Yet, experience has shown for all the “i” dotting and “t” crossing, the license agreement can in fact have glaring omissions or downright errors. All advice regarding licenses and contracts say “read the fine print.” Reading line for line and concept for concept is a necessity. Not being intimidated by the well-constructed prose is also a good idea. Frequently the sales representative who sends the license to sign has made statements about use or distribution not reiterated in print and sometimes contradicted by it.A case in point is a subscription for science journals published by a professional association, which a library negotiated in 1998. The negotiations began in August and concluded in November. The verbal agreement brokered long distance over the telephone, with email follow up, was for a subscription lasting twelve months on a rolling basis (November 1, 1998 through October 31, 1999) and locked in at 1998 prices. This agreement accommodated the university’s budget cycle, which prohibited contracting beyond twelve months. When the license arrived for signature in October, it clearly stated that the duration of the agreement was from January 1, 1999 through December 31, 1999. As the license went on more rounds through the fax machine, the final insult was a call informing the library that it would have to pay 1999 prices, a substantial 25percent increase! Rounds of calls to the sales representative were followed by letters detailing the negotiations to the professional organization’s Executive Director and the journal’s Editor. Fortunately, the email paper trail of the negotiations substantiated the library’s claims. The agreement was finally signed for the November through October period at the previously agreed upon 1998 price. The lesson learned; get it in print and document every step of the negotiation.
Negotiating with sales representatives of print material, however, is little preparation for negotiating a license through the sales representatives for electronic products. While even the newest print representative knows his/her products and can answer questions about its features, this same familiarity seems lacking in a sales force that frequently changes and has a novice’s knowledge of the potentials of the World Wide Web. Knowing content is not enough in the world of electronic publishing. An understanding of the constituents of the electronic environment (communications, networks, hardware) by the sales representative is a necessity and can reduce the rounds of “our technical people will talk to your technical people.”
Electronic Reserves
A good example of this is how knowledgeable the sales rep is and how the license covers (or doesn’t) the growing use by academic libraries of electronic reserves. Electronic reserves, the digital version of the old print “reserve reading,” is a hit with students, who can access it from home or campus twenty-four hours a day. Faculty like it because it allows distribution of articles, lecture notes and even, in some electronic reserves packages, discussion through a chat room. Electronic publishers, however, approach electronic reserves with fear if not loathing. When one librarian was negotiating a subscription to electronic journals, recently, the sales representative had to be told what electronic reserves was and had no idea whether it was covered in the license agreement.“Reasonable” Service Provisions
Activating accounts by agreement day and interruption in service are other deviations from the license agreement and there are not always provisions for the subscriber to recoup days lost. Once again, the technical ignorance of the sales staff and even customer service staff can contribute to the frustration of the library’s representative. Byzantine registration procedures involving subscriber numbers, IP addresses and passwords, including additional registration procedures for individual users, create a frustrating array of possibilities for failure to access the information or activate the subscription. Failure of sales or technical staff to understand even the simplest Internet concept of an IP address range leads to hours or days on the telephone trying to diagnose a problem.From the technical end, it is best to assume nothing. Recently, when a provider changed account management procedures, it dropped all but two of a university’s IP address ranges. After the usual calls to the campus IT department to diagnosis the problem from the university’s end, two days of calls to the provider revealed that the first and the last IP address were transferred and activated but the remaining fourteen in between were dropped. How is this loss of service accounted for in a license agreement that uses the word “reasonable” when referring to service provision on the vendor’s part?
“Librarians have included legal,
purchasing and IT when contracting for electronic materials.
The use of this expertise, however, comes at a price. The decision-making process slows to a crawl as the license makes its way
from desk to desk.”
Restrictions
For the person charged with acquiring electronic resources, ensuring the campus’s compliance with the terms of ten, twenty or more licenses can be a full time job in itself. For the faculty member or administrator it is baffling. As the opening paragraph demonstrates, licenses vary as to who are permitted to use the product, where they may use it and how they may use it. Scientific, technical, medical and business full-text electronic resources are among the most restrictive in the limitations they place on use and users. Restrictions can exclusively include or more likely exclude, alumni, contractual or adjunct faculty or drop-in users. Many databases may permit off-campus access, several may not. As the trend toward replacing print journal subscriptions with electronic journal collections escalates, faculty may encounter another problem. Lending electronically derived material is even more problematic. The sharing of books, journal articles and media has long been the hallmark of inter-library cooperation. Now, licenses strictly forbid or make such onerous demands for record keeping that most libraries refuse to comply. Borrowing an article from a neighboring institution may not be possible in the electronic format, even though it was possible in print.Addenda
Addenda to licenses can include an interesting array of material. The pricing structure or a table stating costs may be included in the added material. Recently, so was a questionnaire. The electronic service provider stipulated in the agreement that information requested in the questionnaire be collected and reported to the provider. One part of the questionnaire requested statistics on the use by the university community of each of six databases. Neither the library nor the Information Technology department on campus was prepared to collect such data for over 500 computers on the campus network. When the provider’s representative was contacted about the problem, she said that the questionnaire was the addendum for the CD-ROM product, not the version on the World Wide Web and the questionnaire was dropped.Involving More Offices
Libraries and librarians, by necessity, are becoming more savvy about the licensing process. They have learned through experience that contract negotiation is the natural turf of the university’s attorney. Although libraries purchase a variety of material, from books to CDs to CD-ROMs, on their own, they know that the Purchasing Department has procedures in place that can keep track of contracts for big ticket purchases as they go through negotiations with an eye on the university’s budget cycle. Most importantly for electronic access, the Information Technology department can answer questions about networking and authorization. So librarians have included legal, purchasing and IT when contracting for electronic materials. The use of this expertise, however, comes at a price. The decision-making process slows to a crawl as the license makes its way from desk to desk. At some universities, the library, legal counsel, purchasing and IT are looking into ways to keep the negotiation process on track and have the agreement completed on time. The key is a strategy that moves the agreement quickly to the appropriate office without bogging down in any one department or absorbing too much of any one department’s time. This also assures that the license conforms to accepted university practice.Librarians have much to contribute. In the language of licensing, they know who the university’s “Authorized Users” are and what “Authorized Uses” the faculty, students, staff and administration will need spelled out in the contract. Librarians also know what “Restrictions” would be contrary to the educational and research needs of the university community.
Final Thoughts
Librarians still acquire a lot of print materials but the age of licensing introduces a paradigm shift on how students and faculty receive information, the condition under which information can be used, and more importantly, how information is paid for. For campuses the need to negotiate fair and equitable contracts requires lots of new expertise and new procedures for acquiring information.The licensing environment itself is changing, too. Contracts once written exclusively for the vendors’ or publishers’ protection, are giving way to ones balancing the libraries’ need for cost savings and greater access and distribution with the vendors’/publishers’ fears of loss of business and exclusive rights.
Academics have tried to influence the electronic publishing environment as well. A sterling example of this is High Wire Press, “the Internet Imprint of Stanford University Libraries.” Begun in 1995 as a collaboration among scientists, librarians and publishers, it provides resources and expertise to scientific societies to make the technological changes necessary to migrate to and exploit fully the potentials of the World Wide Web. The Web is well suited to the methods of scholarly inquiry—using cited articles to find additional information and looking for other publications by the authors. While High Wire journal subscriptions are licensed, limitations are few and they adhere to most libraries’ understanding of the Copyright Law and the concept of “fair use.”
Electronic publications are no longer the wave of the future. They are, for some, preferable to print. Negotiating for them engages the time and energy of many players on campus and this is why the more campus administrators can learn about this topic before a contract negotiation begins, the better position they will be in when the time comes. —Jeanette McVeigh is Electronic Resources Coordinator at the University of the Sciences in Philadelphia. E-mail: j.mcveigh@usip.edu
Helpful Locations
Off campus, libraries have formed consortia and even consortia of consortia to broker better, fairer deals. Guidelines, such as those of the International Coalition of Library Consortia, and sample licensing agreements, such as that proposed by the ICC, offer alternatives.The Liblicense listserv, moderated and archived at Yale University, is a grassroots discussion list for sharing experience and information on virtually any topic relating to the licensing of library resources. Much good information and a searchable archive can be viewed at:
http://www.library.yale. edu/~llicense/index.shtmlAlso on the Yale web site is a variety of material authored by members of the International Coalition of Library Consortia:
http://www.library.yale.edu/consortiaThe Committee on Institutional Cooperation, the academic consortia of the Big Ten and the University of Chicago, has posted standardized agreement language for all to see at:
http://www.cic.uiuc.edu/cli/contracts/standardized_agreement_language.htmThe United Kingdom’s National Site Licensing Initiative, NESLI, a national program to deliver electronic journals to the higher education and research community has the “Model NESLI Site License” on its web site at:
http://www.nesli.ac.uk/ModelLicense8.html
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