Advancing the Electronic Information Marketplace Through Library Licensing

by Ann Okerson, Associate University Librarian, Yale University
Webpage: http://www.library.yale.edu/~okerson/alo.html

The marketplace for traditional information (e.g., tangibles such as books, journals, CDs) operates primarily in two ways. Information is marketed:

1. directly to individuals in exchange for payment (bookstores that sell to customers are the most common example of this type of market); and
2. to libraries, which act as consolidators of funds, collections, and staff to serve their communities of users.

These two types of markets are being created and to some extent already operate for "intangible" electronic information (e.g., information delivered to users via computers and networks). Numerous experts are engaged in creating the commercio-technical mechanisms that enable these new markets to function.

The Academic/Research Library in Transition

In many ways the academic research library of today functions as it did 100 years ago. The library advances teaching, learning, and research in its role as aggregator of numerous support functions for these endeavors. Specifically, an academic research library consolidates institutional funds for purchase of materials and for the staff to select, acquire, organize, and interpret those materials. Academic research libraries are funded in such a way that their own patrons are not charged for services at point of use. Information charges are built into the institutions' budgets and operations and the costs are, at least in their specifics, "transparent" to the users. This is as true for electronic as it has been for traditional information.

The ways in which aggregated library acquisitions and payment functions are carried out have, however, changed markedly over the last century and, in particular, after World War II. Many of these ongoing changes regard scale and efficiency. For example,

• Many more books and journals are purchased than in the past, as are increasing numbers of materials in very diverse media (maps, microforms, images, computer files).
• The large transaction volume has led libraries to consolidate purchasing of journals through agencies rather than placing every subscription directly.
• Likewise, libraries contract with booksellers as general selectors to supply books in quantity, on approval, blanket, and firm order.
• Library cataloging is ideally (though not necessarily in reality) done once in the world for each item, and cataloging records (from large, consolidated databases of cataloging "utilities") are purchased cheaply, and adapted if necessary, for the local institution.
• Nowadays, library users learn early to become self-reliant, via extensive online catalogs, general online reference resources, and user-friendly databases. For example, through access to the Encyclopaedia Britannica and ORBIS (Yale's online catalog) users can find answers to what may formerly have been general reference questions requiring the intervention of a professional librarian.
• In turn, library staff increasingly specialize in advanced information interpretation, teaching, and research support. The serious new databases created and marketed daily by diverse providers call for continuous judgments and interpretation, as well as significant budget expenditures.
• Each library transaction is conducted against a background of fierce competition (e.g., among booksellers or automation providers), sharply negotiated contracts for goods and services, increasingly "intelligent" automation support, and a rising level of sophistication on the part of library managers and subject specialists.

The Biggest Change? The Regime Governing Information Use

A great many institutional library processes and transactions today can be said to have developed and be developing on continuums such as

and libraries have effectively absorbed such changes. However, one aspect of library business transactions, fundamental to electronic resources, represents a qualitative change from pre-electronic business:

Inevitably, in the electronic environment, the terms under which the library accesses the information, and the community members' use of the resource -- to say nothing of the entire dimension of the "deal" -- are governed by the contract that describes the terms under which the various resources are used, paid for, terminated, and so on.

What licensing agreements have in common with the copyright regime is that both accept the fundamental idea of the nature of intellectual property creations: regardless of presentation format, information is owned. The notion of ownership and the checks and limits on it, are absolutely vital as a foundation for creating licenses, for if copyright did not exist at all, we would have to invent something like copyright in order to move forward. That said, where the two regimes (copyright and contractual) differ is in the vehicle by which they seek to balance owners and users' rights and to regulate the economy that springs up around them. Copyright represents a set of general regulations negotiated through statutory enactment. The same laws and guidelines apply to everyone in the country. Licenses or contracts, on the other hand, represent a market-driven approach to such regulation. Each license is arranged between a willing purveyor and willing licensee, resource by resource. The owner of a piece of property is free to ask whatever price and set whatever conditions the market will bear.

It is possible to spend much time discussing why this shift to the license mechanism has occurred (the reasons are complex and relate only in part to newness in technologies); whether the license regime is good or bad (I affirm its neutrality and assert that licensors and customers are defining the shape of that regime -- and are fully responsible for what it becomes); whether the contract is trumped by copyright statute if the contract describes an arrangement contrary to copyright (cautiously, I assert that one needs properly and fully to define and create the best possible contract without relying on other laws to salvage a bad deal); and whether licenses destroy copyright (they need not; in fact they can improve user terms significantly over what is permitted in copyright).

Creating an Effective Licensing Environment

If digital-libraries-as-institutions are to work with copyright holders or information providers to foster a successful (or at least mutually acceptable) licensing environment for digital collections and databases, several serious problems need to be addressed. It is difficult at this point to imagine that research libraries would not or should not continue in their aggregating roles and that creators or vendors will make an adequate market, particularly for scholarly and academic information, by going directly to readers. The aggregating role of the library will persist, and information producers need the scaled-up and predictable revenue that such a market represents.

1. Educate the stakeholders: creators, sellers, and customers
   
   

• All parties need to understand what a license means, how it builds upon copyright foundations, and where it differs. Still too frequently, boilerplate licenses are presented to institutional customers. These licenses seem often to have been crafted by attorneys who have no concept of how the information under contract will be used; the language can range from effective, to unacceptable, to incomprehensible. This is less and less true of licenses from producers who genuinely wish to make a deal, but many sections of numerous licenses still need to be demystified, studied, and revised by both the library customers and the producers.
  
  
• All parties need to understand what issues the license can and cannot solve. For example, while it is common to refer to long-term or perpetual access in a license, so that a customer that cancels a database might have access to the years during which the library was a subscriber, the license itself cannot solve such vexing problems as preservation and cannot assure mechanisms for long-term access.
  
  

2. Address Scaling
   

• Scaling up is problematic -- it is not feasible for producers and institutions to conduct tens of thousands of one-on-one information transactions in the electronic environment, any more than it is in the print environment. Negotiating and changing similar sections or terms over and over again with provider after provider feels like a hopeless and wearying activity. In the 15 May 1997 issue of Library Journal, a survey article ("The Data Dealers") affirmed the existence of thousands of electronic databases (each one no doubt accompanied by a license); and that article had not yet delved into, for example, the quickly growing new world of full-text e-journals.
  
  
• Intermediaries who package together collections of products (i.e., electronic information aggregators such as Lexis-Nexis, OCLC, DIALOG, IAC, subscription agencies, and numerous others) tend to look for (a) the best deals for themselves; and (b) homogenizing terms that treat all intellectual property alike and often in restrictive or unsuitable ways for users. The terms that aggregators bring to institutions are not necessarily in the readers' favor.
  
  
• One response to aggregators presenting (expensive) electronic packages to institutions has been the rise of consortia as aggregators for libraries.[1] This is an exciting area (for example, as many as 100 academic library consortia from around the world met with vendors earlier this year, and these consortial coordinators "talk" routinely together on e-mail lists). However, it is not clear what the future of the consortium-as-aggregator will be. Does the library consortium represent the HMO way of doing business electronically and will it displace the single-library-as-institution, or will producers feel compelled to offer similar terms to small and large libraries, to small and large consortia of libraries?
  
  
• Institutions, vendors, and creators need to understand licensing and negotiating. These skills and arts need to be fostered in all types of institutions; staffing and workflow needs to adjust for them.
  

3. Create joint working groups to solve specific problems
   
   The US Conference on Fair Use (CONFU) process was not successful in creating guidelines for use, because many of the delegates were approaching the problems from a high level of abstraction and certainly from comparatively little experience with the electronic environment. Today, working groups of stakeholders who have been active in licensing should be able to agree to at least some standard concepts, and to address together some particularly vexing challenges such as perpetual access, InterLibrary Loan or its electronic equivalents, reasonable security measures, and standard usage data.
   
   
4. Create models and tools for licensing
   
   Several such endeavors deserve to be mentioned as examples of what can be done. Most of the initiatives described are voluntary, but they represent early steps in the right direction. These steps need to be legitimized, expanded, and mainstreamed.
   

1. The LIBLICENSE Project [2]
   
   Two phases of this project have been carried out at Yale University (PI, Ann Okerson) with funding from CLIR, The Council on Library and Information Resources. The LIBLICENSE Web site provides extensive educational information such as definitions, discussion, sample licenses, and links to other WWW resources. With its companion, the Liblicense-l discussion list (liblicense-l@lists.yale.edu), it identifies and describes problems and calls for solutions. At the end of 1998, LIBLICENSE also provided its freely available LIBLICENSE software online as an attempt to standardize and simplify electronic content licensing process for customers and producers. LIBLICENSE is aimed at an international audience, though, not surprisingly, it addresses most effectively the needs of a North American library population.
   
   
2. ARL Licensing Workshops and Documents [3]
   
   The Association of Research Libraries, a membership organization of the US and Canada's 121 largest research libraries, has produced licensing documentation and has sponsored a series of workshops emphasizing license review, negotiation, and institutional team-building. These workshops are open to librarians and other institutional staff engaged in the process of reviewing and negotiating licenses for electronic resources with information providers on behalf of the library, the institution as a whole, or a consortium. Institutional teams representing, for example, the library, computing center, and the legal counsel's office, are encouraged.
   
   A draft document called "Principles for Licensing Electronic Resources" is available on the ARL web site. [4] Its signatories include the American Association of Law Libraries, American Library Association, Association of Academic Health Sciences Libraries, Association of Research Libraries, Medical Library Association, and the Special Libraries Association.
   
   
3. Proposed or Draft Model License Between Publishers and UK Universities
   
   In the last two years, the UK has achieved an enviable degree of success through two model license activities:
   
   • Its joint Publishers Association/Joint Information Systems Committee (PA/JISC) attempts to develop a national model license under the aegis of the UK Higher Education Funding Council, an agency that has made a significant investment in the creation of digital library resources through many initiatives and projects. [5]
   • Similar efforts by the Higher Education Funding Council's initiative for national electronic journal site licenses have resulted in a National Electronic Site License Initiative (NESLI) draft license.[6]
     
     
   The strengths of these drafts are in the areas of:
   
   • Definitions that enable both providers and customers to use terminology consistently.
   • Boiler-plate wording that can be incorporated into agreements to the extent required.
     
     
4. ECUP/EBLIDA (European Copyright User Platform and European Bureau of Library, Information and Documentation Associations) [7]
   
   In October 1994, EBLIDA was granted funding to set up the European Copyright User Platform (ECUP I) under the Libraries Programme and to conduct a Copyright Awareness Campaign. The objectives of the European Copyright User Platform were to:
   
   
   • Make librarians/information professionals aware of copyright;
   • Identify the copyright problems in electronic services;
   • Discuss these problems with the rights holders; and
   • Draw up a code of good practice for the use of electronic information
   
   ECUP I ended in October 1995. The ECUP+ Concerted Action continued the activities started under the ECUP I contract. During 1997, ECUP copyright awareness workshops were being organized and conducted in the countries of the EU and Norway. The workshop program focused on the developments in national and international copyright legislation, discussion of the user rights in electronic publications, services of the European Copyright Focal Point, introductions of European document delivery projects, licensing issues, etc. Additionally this project produced several model documents or agreements for discussion. Their future is not clear, especially as the project is now completed (as of 12/98) and the focus has shifted to Central and Eastern Europe.
   
   
5. US Discussions
   
   An informal, self-selected working group of individuals from the Association of American Publishers (AAP) and the Council on Library and Information Resources (CLIR) has met twice, once in November 1998 and a second time in February 1999, to consider how the US licensing environment might be made more conducive to scaling up of licensing. Given the strong US anti-trust regulations, it is not clear what recommendations this group could make.

What Now?

The purpose of this short piece is to convey cautious optimism -- for in fact it appears that as a result of the increasingly productive marketplace conversations between commercial (both for-profit and not-for-profit) electronic information vendors and their customers, we will build a sustainable economy of information that serves both publishers and institutions' digital needs. At least, there is a growing sense of the importance of licensing issues. In negotiating licenses every day, information providers and libraries really are determining the nature and shape of digital information in the future. A great deal remains to be done. Some of that work will be to foster alternative models of scholarly communications which might be free of such complex legalities.

[Note: An earlier version of this essay was written for a joint NSF/EU Working Group on Intellectual Property.]

Endnotes

1. See the public web site of the International Coalition of Library Consortia, an almost virtual group (except for two meetings per year)
2. See the LIBLICENSE project, with link to liblicense-l subscription, archives, and numerous educational features
3. For further workshop information, see: http://arl.cni.org/scomm/licensing/
4. This statement can be found at http://arl.cni.org/scomm/licensing/principles.html
5. The current version is at http://www.library.yale.edu/~llicense/Pajisc21.html
6. NESLI (National Electronic Site License Initiative) reports and work can be found at: http://www.nesli.ac.uk/
7. The ECUP web site is at: http://www.eblida.org/ecu

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