What has happend to increase Libraries' Awareness of Licenses?

1. Sheer numbers have increased. Thousands of information providers have jumped into the scholarly marketplace with electronic products of one sort or another: CDs, on-line databases, full text resources, multimedia. Many scientific publishers, learned societies, university presses, full-text publishers, and vendor/aggregators, as well as new entrants to the publishing arena, now offer beta or well-tested versions of either print-originating or completely electronic information. The numbers have ballooned in a short two to three years, with no signs of abating. For example, Newfour, the on-line forum for announcing new e-journals, magazines, and newsletters, reports 3,634 titles in its archive as of April 5,1997, and this figure does not include the 1,100 science journal titles that Elsevier is now making available in electronic form.^[6] The Yale University Library licenses more than 400 electronic resources of varying sizes, types, media, and price, and it reviews about two new electronic content licenses a week.

2. The attempt by various players in the information chain to create guidelines about electronic fair use has not so far proved fruitful. In connection with the Clinton Administration's National Information Infrastructure initiative, the Working Group on Intellectual Property Rights in the Electronic Environment called upon copyright stakeholders to negotiate guidelines for the fair use of electronic materials in a variety of nonprofit educational contexts. Anyone who wished to participate was invited to do so, and a large group calling itself CONFU, the Conference on Fair Use, began to negotiate such guidelines for a variety of activities (such as library reserves, multimedia in the classroom, interlibrary loans, etc.) in September 1997.^[7] The interests of all participants in the information chain were represented, and the group quickly began to come unstuck in reaching agreements on most of the dozen or more areas defined as needing guidelines. Such stalemates should come as no surprise; in fact, they are healthy and proper. Any changes to national guidelines, let alone national law or international treaty, should happen only when the public debate has been extensive and consensus has been reached. What many have come to realize during the current licensing activities is that the license arrangements that libraries currently are making are in fact achieving legislation's business more quickly and by other means. Instead of waiting on Congress or CONFU and allowing terms to be dictated to both parties by law, publishers and institutions are starting to make their peace together, thoughtfully and responsibly, one step at a time. Crafting these agreements and relationships is altogether the most important achievement of the licensing environment.

3. Numerous formal partnerships and informal dialogues have been spawned by the capabilities of new publications technologies. A number of libraries collaborate with the publishing and vendor communities as product developers or testers. Such relationships are fruitful in multiple ways. They encourage friction, pushback, and conversation that lead to positive and productive outcomes. Libraries have been offered-and have greatly appreciated-the opportunity to discuss at length the library licenses of various producers, for example, JSTOR, and libraries feel they have had the opportunity to shape and influence these licenses with mutually satisfactory results.

4. Library consortia have aggressively entered the content negotiating arena. While library consortia have existed for decades and one of their primary aims has been effective information sharing, it is only in the 1990s (and mostly in the last two to three years) that a combination of additional state funding (for statewide consortia), library demands, and producers' willingness to negotiate with multiple institutions has come together to make the consortial license an efficient and perhaps cost-effective way to manage access to large bodies of electronic content. An example of a particularly fruitful marketplace encounter (with beautiful as well as charged moments) occurred from February 3 to 5, 1997, as a group of consortial leaders, directors, and coordinators who had communicated informally for a year or two through mailing list messages arranged a meeting at the University of Missouri-St. Louis. The Consortium of Consortia (COC, as we sweepingly named ourselves) invited a dozen major electronic content vendors to describe their products briefly and their consortial working arrangements in detail.^[8] By every account, this encounter achieved an exceptional level of information swapping, interaction, and understandings, both of specific resources and of the needs of producers and customers. That said, the future of consortial licensing is no more certain than it is for individual library licenses, though for different reasons.^[9]

5. Academia's best legal talent offers invaluable support to libraries. Libraries are indebted to the intelligent and outspoken lawyerly voices in institutions of higher learning in this country. The copyright specialists in universities' general counsel offices have, in a number of cases, led in negotiating content licenses for the institution and have shared their strategies and knowledge generously. Law school experts have published important articles, taught courses, contributed to Internet postings, and participated in national task forces where such matters are discussed.^[10]

6. The library community has organized itself to understand the licensing environment for its constituents. The Association of Research Libraries (ARL) has produced an introductory licensing brochure,^[11] the Council on Library Resources/Commission on Preservation and Access has supported Yale Library's creation of an important Web site about library content licensing,^[12] and the Yale Library offers the library, publisher, vendor, and lawyer world

a high-quality, moderated, on-line list where the issues of libraries and producers are aired daily.^[13]

7. Options are limited. Right now, licensing and contracts are the only way to obtain the increasing number of electronic information resources that library users need for their education and research.