Chapter 3— The Transition to Electronic Content Licensing The Institutional Context in 1997
1. Clifford Lynch in "Technology and Its Implications for Serials Acquisitions," Against the Grain 9, no. 1 (1997): 31. This article is based on a talk by Lynch at the November 1996 Charleston Conference. He identifies the key needs in building digital libraries as authentication, printing, individual item addressability, accessibility, and linkage. Lynch concludes with this insight: "The theme I want to underscore here is that we need to be very careful about whether we have technology that can deliver this electronic content for which we are busy negotiating financial arrangements in acceptable ways on a broad systemic basis" [emphasis is mine]. [BACK]
2. The position statement "Fair Use in the Electronic Age: Serving the Public Interest" is an outgrowth of discussions among a number of library associations regarding intellectual property and, in particular, the concern that the interests and rights of copyright owners and users remain balanced in the digital environment. This important position statement was developed by representatives of the following associations: American Association of Law Libraries, American Library Association, Association of Academic Health Sciences Library Directors, Association of Research Libraries, Medical Library Association, and Special Libraries Association. It espouses the philosophy that the U.S. copyright law was created to advance societal goals and well-being and embeds the notion of technological neutrality. It can be found at: http://www.arl.org/info/frn/copy/fairuse.html. [BACK]
3. I have recently had the opportunity to read statements from the international publishing community in two major position papers originating with the International Publishers Copyright Council, the STM group of publishers, and the International Publishers Association. These documents affirm the following:
· Digital versions of works are not the same as print versions, because digital information can be manipulated and widely distributed. (The implication is that manipulation and distribution will happen and that it is happening with copyrighted works, often in an illegal manner.)
· Digital versions of works need even more protection than printed versions.
· Digital browsing is not the same as reading print: the very act of browsing involves reproducing copies (which immediately implicates and possibly violates copyright law).
· There should be no private or personal exemptions from copyright in the digital environment.
· There should be no exceptional copyright treatment for libraries in the digital environment-the exemptions for traditional materials, if carried over into the digital environment, will result in unfair competition with publishers.
· Digital lending (a digital analog to ILL) will destroy publishers.
· Publishers are now poised to offer and charge for electronic delivery of information and therefore they ought to be able to. Such services will replace most of the copying that libraries and individuals used to do in print.
· The role of libraries will be to provide access, select materials for users via what they choose to license, instruct users in the vast array of electronic sources and how to use them, and support users in searching and research and learning needs. [BACK]
4. See the 30 June 1996 decision by the United States Court of Appeals, Seventh Circuit, in ProCD v. Zeidenberg. The question posed was: must buyers of computer software obey the terms of shrink-wrap licenses? The district court had said not. The court of appeals reversed this decision. ProCD (the plaintiffs) compiled information from more than 3,000 phone directories into one database with additional information such as zip code extensions and included their own searching software. They packaged the product, called SelectPhone, as a CD for personal sale in a shrink-wrap box. They also sold it to commercial companies in other formats, such as mailing lists. Mr. Zeidenberg bought SelectPhone at a shop in Madison, Wis., and formed a company to resell the information on the basis that factual information cannot be copyrighted. He made this information available over the Internet apparently quite cheaply. Zeidenberg argued that a person cannot be bound by the shrink-wrap license because the terms are not known at the time of purchase. They are inside the package and the purchaser cannot be bound by terms that are secret at the time of purchase. The judges' decision was that the shrink-wrap license is legal and that a buyer is bound by it. [BACK]
5. See Martha Kellogg, "CD-ROM Products as Serials: Cost Considerations for Libraries," in Serials Review 17, no. 3 (1991): 49-60. The tables in this article, as a basis of comparison between print reference or indexing and abstracting works and their CD equivalents, show a difference of about 30% where resources are comparable. Recent e-mail from the University of Michigan Library suggests that differentials between print and electronic works are as high as 600%. [BACK]
6. Newfour is a joint project of the Yale Library, the University of Pennsylvania, and the University of California, San Diego Library. Its fully searchable archive is located at http://gort.ucsd.edu/newjour/. [BACK]
7. A good summary of the flavor, debates, and progress of CONFU can be found at http:/ / www.utsystem.edu/OGC/IntellectualProperty/confu.htm. The CONFU interim report is available at http://www.uspto.gov/web /offices/dcom/olia/confu/. [BACK]
8. For a list of the consortia that participated in the St. Louis meeting and descriptions of their activities, see the COC home page at Yale University Library: http:// www.library.yale.edu/consortia/. [BACK]
9. Ann Okerson, "Buy or Lease? Two Models for Scholarly Information at the End (or the Beginning) of an Era," Daedalus 125, no. 4 (1996): 55-76. This special issue on libraries is called "Books, Bricks, and Bytes." I suggest that one possible outcome of the new trend to scaled-up consortial licensing activities is that the library marketplace will gain significant power and that publishers of scholarly information could find themselves in quite a different position than they are in the captive marketplace of today. It is possible to argue that such an outcome is very healthy; on the other hand, even librarians and scholars might find this outcome undesirable in that it would put today's specialized scholarly publications, with their attendant high prices, out of business. The Daedalus piece can also be found at http://www.library.yale.edu/~okerson/daedalus.html. [BACK]
10. For example, an especially rich resource is the site of the University of Texas Office of General Counsel's Copyright Management Center. The center provides guidance and information to faculty, staff, and students concerning applicable law and the alternatives available to help accomplish educational objectives. A large number of materials, organized by topic, is accessible through this Web site. Some important documents are stored directly on the Web server. The principal author is Georgia Harper, copyright counsel for the University of Texas System. The URL is http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm.
The higher education community is indebted to, among others, Indiana University's Kenneth Crews, an important voice in CONFU (see, for example, the CETUS Fair Use document at http://www.cetus.org/fairindex.html ); the University of North Carolina Law School's Lolly Gasaway, also a leader in CONFU and contributor of many important resources (see, for example, "When Works Pass Into the Public Domain" at http://www.library.yale.edu/~okerson/pubdomain.html ); and Karen Hersey of the MIT Counsel's Office, a leader in crafting university-producer electronic license agreements and a frequent workshop presenter on this topic. [BACK]
11. See "Licensing Electronic Resources: Strategic and Practical Considerations for Signing Electronic Information Delivery Agreements" at http://www.arl.org/scomm/licensing/licbooklet.html. [BACK]
12. See LIBLICENSE: Licensing Digital Information-A Resource for Librarians. This Web resource contains license vocabulary, licensing terms and descriptions, sample publishers' licenses, links to other licensing sites, and a bibliography about the subject. The URL is http://www.library.yale.edu/ ~llicense/index.shtml. [BACK]
13. LIBLICENSE-L is a moderated list for the discussion of issues related to the licensing of digital information by academic and research libraries. To join the LIBLICENSE-L list, send a message to email@example.com. Leave the subject line blank. In the body of the message, type: subscribe LIBLICENSE-L Firstname Lastname [BACK]
14. A LIBLICENSE-L message of February 12, 1997, enumerated a dozen different pricing models for electronic resources, and correspondents added several more in subsequent discussion. [BACK]
15. Several reasons are advanced for the higher cost of electronic resources versus comparable print resources: (1) the producers are making new R&D and technology investments whose significant prices are passed on to the customer; (2) producers of journals generally offer a package that includes print plus electronic versions, giving the customer two different forms of the same information rather than one only; (3) the functionality of electronic resources is arguably higher than that of the print version; (4) electronic resources are not marketed as single journals or books but as scaled-up collections, often of substantial heft (consider the corpora of humanities full texts marketed by Chadwyck-Healey, the large backfile collections of JSTOR, the full collection of Academic Press titles available under its IDEAL program; it seems that there is little incentive for producers to create and sell one electronic item at a time); and (5) the publisher, in becoming the source or site or provider, is taking on many of the library's roles and costs. [BACK]
16. A LIBLICENSE-L message of March 14,1997, defined aggregators in the following way: 'Aggregation' as used on this list means the bundling together or gathering together of electronic information into electronic collections that are marketed as a package. For example, DIALOG@CARL aggregates 300 databases; Academic Press's IDEAL aggregates 170+ journals; Johns Hopkins's Project MUSE is an electronic collection of 40+ journals, and so on. But the term 'aggregator' is more usually used in describing the supplier who assembles the offerings of more than one publisher, so one is more likely to hear Dialog, OCLC, Information Access, and UMI spoken of as aggregators, than The Johns Hopkins University Press." [BACK]
17. License negotiations between libraries and producers now do take into account the matter of electronic archiving, or at least the parties pay lip service to perpetual access. For example, it is common for an electronic resource license to offer some form of access or data if the library cancels a license or if the provider goes out of business. However, while the license addresses this matter, the underlying solutions are far from satisfactory for either party. I leave the matter of archiving, a huge topic and concern, to other venues; clearly the whole underpinnings of libraries and culture are at stake, depending on the outcomes of the archiving dialogues that are in place now and will surely outlast our lifetimes. [BACK]
18. At Yale, for example, after close discussions on this matter with the library to make sure that points of view were in synch, general counsel delegated library content licensing to senior library administration and it is now done by the associate university librarian for collections with considerable support and backstopping by Yale's public services and collections librarians in effective and productive teamwork. [BACK]
19. In fact, the software development was funded by CLIR (formerly the Council on Library Resources) in June 1997, and its product is now available at http://www.library.yale.edu/ ~ llicense/software.shtml). [BACK]
20. The case, Princeton University Press v. Michigan Document Services, Inc., asked the question: does a copy shop infringe on publishers' copyrights when it photocopies course pack materials? This material comprises book chapters and articles for students of nearby colleges and universities. The owner of Michigan Document Services argued that he was copying on behalf of the students and exercising their fair use rights. The recent appeal in the United States Court of Appeals for the Sixth Circuit found for the publishers. For extensive documentation on this matter, see Stanford's Fair Use site at http://fairuse.stanford.edu/mds/. [BACK]
21. For the journals available through Stanford's HighWire, see http:/ /highwire.stanford.edu. [BACK]