When Did This Mode of Doing Business Begin for Libraries?

The concept of a license is old and fundamentally transparent. A license is essentially a means of providing use of a piece of property without giving up the ownership. For example, if you own a piece of property and allow another to use it without transferring title, you may, by law of contract, stipulate your conditions; if the other party agrees to them, then a mutually agreeable deal has come into being. A similar transaction takes place in the case of performance rights for films and recordings. This example moves from the tangible property mode of real estate, in which exclusive licenses (granting of rights to only one user) are common, to the intangible property mode of intellectual property such as copyright, in which nonexclusive licenses are the norm. The owner of a movie theater rarely owns the cans of film delivered weekly to the cinema, holding them instead under strict conditions of use: so many showings, so much payment for each ticket sold, and so on. With the right price such an arrangement, like the economic relationship between author and publisher that is sanctioned by copyright, can be extraordinarily fruitful. In the license mode of doing business (precisely defined by the legal contract that describes the license), the relationships are driven entirely by contract law: the owner of a piece of property is free to ask whatever price and set whatever conditions on use the market will bear. The ensuing deal is pure "marketplace" a meeting of minds between a willing buyer and a willing seller. A crucial point here is that the license becomes a particularly powerful tool for that property owner who has a copyright-protected monopoly.

Most academics began to be parties to license agreements when personal computer software (WordStar, WordPerfect) appeared in the 1980s in shrink-wrap packages for the first time. Some purchasers of such software may have read the fine print on the wrapper that detailed the terms and conditions of use, but most either did not or have ceased to do so. The thrust of such documents is simple: by opening the package the purchaser has agreed to certain terms, terms that include limited rights of ownership and use of the item paid for. In many ways, this mode of licensing raises problematic questions,^[4] but in other ways, such as sheer efficiency, shrink-wrap licensing suggests the kind of transaction that the scholarly information marketplace needs to achieve. It is noteworthy that the shrink-wrap license has moved easily into the World Wide Web environment, where it shows itself in clickable "I agree" form. The user's click supposedly affirms that he or she has said yes to the user terms and is ready to abide by them. The downsides and benefits are similar to those of shrink-wrapped software.

The phenomenon of institutional licensing for electronic content has evolved in a short time. Over the past 20 years or so, the licensing of software has become a way of life for institutions of higher education. These kinds of licenses are gen-

erally for systems that run institutional computers or on-line catalogs or software packages (e.g., for instruction or for office support). The licenses, often substantial in scale and price, are arranged by institutional counsel (an increasingly overworked segment of an educational institution's professional staff) along with information technology managers.

Libraries' entrée into this arena has been comparatively recent and initially on a small scale. In fact, the initial library business encounter with electronic content may not have happened via license at all, but rather via deposit account. Some 20 years ago, academic and research libraries began accessing electronic information through mediated searching of indexing and abstracting services provided by consolidators such as Dialog. Different database owners levied different per hour charges (each database also required its own searching vocabularies and strategies), and Dialog (in this example) aggregated them for the educational customer. For the most part, libraries established accounts to which these searches (usually mediated by librarians or information specialists) were charged.

By the late 1980s, libraries also began to purchase shrink-wrapped (prelicensed) content, though shrink-wrapped purchases did not form-and still do not-any very visible part of library transactions. Concurrently, a number of indexing and abstracting services offered electronic versions directly to libraries via CD-ROM or through dial-up access (for example, an important early player in this arena was ISI, the Institute for Scientific Information). It was at this point, within the last ten years, that library licenses gradually became recognized as a means to a new and different sort of information acquisition or access. Such licenses were often arranged by library subject specialists for important resources in well-defined areas of use. The license terms offered to libraries were accepted or not, the library customer regarding them mostly as nonnegotiable. Nonacceptance was most often a matter of affordability, and there seemed to be little room for the library customer to affect the terms. Complaints about terms of licenses began to be (and persist in being) legion, for important reasons such as the following:

• Potential loss of knowledge. By definition, licenses are arranged for specific periods of time. At the end of that time, librarians rapidly discovered, if the license is not renewed, prior investment can become worthless as the access ceases (for example, where a CD-ROM must be returned or perhaps stops being able to read the information; or where connections to a remote server are severed).

• License restrictions on use and users. In order to reduce or curtail the leakage of electronic information, institutions are often asked to ensure that only members of the institution can use that information.,

• Limitations on users' rights. Initial license language not infrequently asks that institutional users severely limit what and how much they may copy from the information resource and may prescribe the means by which such copying can be done.

• Cost. In general, electronic licenses for indexing and abstracting services cost significantly more than print equivalents.^[5]