Some notable challenges of the library licensing Environment Today

I identify these challenges because they are important and need to be addressed.

1. Terms of use. This area needs to be mentioned at the outset, as it has caused some of the most anguished discussions between publishers and libraries. Initially, many publishers' contract language for electronic information was highly restrictive about both permitted users and permitted uses. Assumptions and requirements about how use ought to be contained have been at times ludicrous, for example, in phrases such as "no copies may be made by any means electronic or mechanical." Through dialogue between librarians and producers, who are usually eager to market their work to happy customers, much of this language has disappeared from the first draft contracts presented to library customers. Where libraries are energetic and aggressive on behalf of their users, the terms of use can indeed be changed to facilitate educational and research goals. The Yale Library, for example, is now party to a number of licenses that permit substantial amounts of copying and downloading for research, individual learning, in-the-classroom learning, library reserves, course packs, and related activities. Interlibrary loan and transmission of works to individual scholars in other organizations are matters that still need a great deal of work. However, the licenses of 1996 and 1997 represent significant all-around improvements and surely reinforce the feeling that rapid progress is being made.

2. Scalability. Institutional electronic content licenses are now generally regarded as negotiable, mostly because the library-customer side of the marketplace is treating them as such (which publishers seem to welcome). Successes of different sorts have ensued (success being defined as a mutually agreeable contract), making all parties feel that they can work together effectively in this new mode. However, negotiations are labor intensive. Negotiation requires time (to develop the expertise and to negotiate), and time is a major cost. The current method of one-on-one negotiations between libraries and their publishers seems at the moment necessary, for many reasons, and at the same time it places new demands on institutional staff. Scalability is the biggest challenge for the licensing environment.

• Clearly, it is too early to shift the burden onto intermediaries such as subscription agencies or other vendors who have vested interests of their

own. So far their intervention has been absent or not particularly successful. In fact, in some of the situations in which intermediaries purvey electronic databases, library customers secure less advantageous use terms than those libraries could obtain by licensing directly from the publishers. This is because those vendors are securing commercial licenses from the producers whereas libraries are able to obtain educational licenses. Thus, it is no surprise that in unveiling their latest electronic products and services, important organizations such as Blackwell's (Navigator ) and OCLC (EFO-Electronic Fournals On-line ) leave license negotiating for the journal content as a matter between the individual journal publishers and their library customers.

• The contract that codifies the license terms is a pervasive document that covers every aspect of the library/producer relationship, from authorized uses and users to technology base, duration, security mechanisms, price, liability, responsibility, and so on. That is, the license describes the full dimensions of the "deal" for any resource. The library and educational communities, in their attempts to draft general principles or models to address content licensing, characteristically forget this important fact, and the results inevitably fall short in the scaling-up efforts.

3. Price. Pricing models for electronic information are in their infancy; they tend to be creative, complicated, and often hard to understand.^[14] Some of these models can range from wacky to bizarre. Consortial pricing can be particularly complex. Each new model solves some of the equity or revenue problems associated with earlier models but introduces confusion of its own. While pricing of electronic resources is not, strictly speaking, a problem with the license itself, price has been a major obstacle in making electronic agreements. The seemingly high price tags for certain electronic resources leave the "serials crisis" in the dust.^[15] It is clear that academic libraries, particularly through their consortial negotiators, expect bulk pricing arrangements, sliding scales, early signing bonuses, and other financial inducements that publishers may not necessarily feel they are able to offer. Some of the most fraught moments at the St. Louis COC meeting involved clashes between consortial representatives who affirmed that products should be priced at whatever a willing buyer can or will pay, even if this means widely inconsistent pricing by the vendor, and producers who affirmed the need to stick with a set price that enables them to meet their business plan.

4. The liability-trust conundrum. One of the most vexing issues for producers and their licensees has been the producers' assumption that institutions can and ought to vouch for the behavior of individual users (in licenses, the sections that deal with this matter are usually called "Authorized or Permitted Users" and what users may do under the terms of a license is called an "Authorized or Permitted Use") and the fact that individual users' abuses of the terms of

a license can kill the deal for a library or a whole group of libraries. Working through this matter with provider after provider in a partnership/cooperative approach poses many challenges. In fact, this matter may be a microcosm of a larger issue: the development of the kind of trust that must underlie any electronic content license. Generally the marketplace for goods is not thought of in terms of trust; it regarded as a cold cash (or virtual cash) transaction environment. Yet the kinds of scaled-up scholarly information licenses that libraries are engaging with now depend on mutual understanding and trust in a way not needed for the standard trade-or even the print-market to work. In negotiating electronic content licenses, publishers must trust-and, given the opening up of user/use language, it seems they are coming to trust-their library customers to live up to the terms of the deal.

In part, we currently rely on licenses because publishers do not trust users to respect their property and because libraries are fretful that publishers will seek to use the new media to tilt the economic balance in their favor. Both fears are probably overplayed. If libraries continue to find, as they are beginning to do, that publishers are willing to give the same or even more copying rights via licenses as copyright oners, both parties may not be far from discovering that fears have abated, trust has grown, and the ability to revert to copyright as the primary assurance of trust can therefore increase. But many further technological winds must blow-for example, the cybercash facility to allow micropayment transactions-before the players may be ready to settle down to such a new equilibrium.

5. The aggregator aggravation (and opportunity). The costly technological investments that producers need to make to move their publications onto an electronic base; the publishing processes that are being massively reconceived and reorganized; and not least, the compelling vision of digital libraries that proffer information to the end user through a single or small number of interfaces, with a single or modest number of search engines, give rise to information aggregators of many sorts:^[16] those who develop important searching, indexing, and/or display softwares (Alta Vista, OpenText, etc.); those who provide an interface or gateway to products (Blackwell's, etc.); and those who do all that plus offer to deliver the information (DIALOG @CARL, OCLC, etc.). Few publishers convert or create just one journal or publication in an electronic format. From the viewpoint of academic research libraries, it appears that the electronic environment has the effect of shifting transaction emphasis from single titles to collections or aggregations of electronic materials as marketplace products.

In turn, licensing collections from aggregators makes libraries dependent on publishers and vendors for services in a brand new way. That is, libraries' original expectation for electronic publications, no more than five years ago, was that publishers would provide the data and the subscribing library or

groups of libraries would mount and make content available. But mounting and integrating electronic information requires a great deal of capital, effort, and technological sophistication as well as multiple licenses for software and content. Thus, the prognosis for institutions meeting all or most of their users' electronic information needs locally is slim. The currently emerging mode, thus, takes us to a very different world in which publishers have positioned themselves to be the electronic information providers of the moment.^[17]

The electronic collections offered to the academic library marketplace are frequently not in configurations that librarians would have chosen for their institutions had these resources been unbundled. This issue has surfaced in several of Yale Library's negotiations. For example, one publisher of a large number of high-quality journals made only the full collection available in e-form and only through consortial sale. By this means, the Yale Library recently "added" 50 electronic journal titles to its cohort, titles it had not chosen to purchase in print. The pricing model did not include a cost for those additional 50 titles; it was simply easier for the publisher to include all titles than to exclude the less desirable ones. While this forum is not the place to explore this particular kind of scaling up of commercial digital collections, it is a topic of potentially great impact on the academic library world.

6. The challenge of consortial dealings. Ideally, groups of libraries acting in consort to license electronic resources can negotiate powerfully for usage terms and prices with producers. In practice, both licensors and licensees have much to learn about how to approach this scaled-up environment. Here are some of the particularly vexing issues:

• Not all producers are willing to negotiate with all consortia; some are not able to negotiate with consortia at all.

• In the early days of making a consortial agreement, the libraries may not achieve any efficiencies because all of them (and their institutional counsel) may feel the need or desire to participate in the negotiating process. Thus, in fact, a license for 12 institutions may take nearly as long to negotiate as 12 separate licenses.

• Consortia overlap greatly, particularly with existing bodies such as cataloging and lending utilities that are offering consortial deals to their members. It seems that every library is in several consortia these days, and many of us are experiencing a competition for our business from several different consortia at once for a single product's license.

• No one is sure precisely what comprises a consortial "good deal." That is, it is hard to define and measure success. The bases for comparison between individual institutional and multiple institutional prices are thin, and the stated savings can often feel like a sales pitch.

• Small institutions are more likely to be unaffiliated with large or powerful institutions and left out of seemingly "good deals" secured by the larger, more prosperous libraries. Surprisingly enough, private schools can be at a disadvantage since they are generally not part of state-established and funded consortial groups.

• In fact, treating individual libraries differently from collectives may, in the long run, not be in the interests of publishers or those libraries.

7. Institutional workflow restructuring. How to absorb the additional licensing work (and create the necessary expertise) within educational institutions is a challenge. I can foresee a time when certain kinds of institutional licenses (electronic journals, for example) might offer standard, signable language, for surely producers are in the same scaling-up bind that libraries are. At the moment, licenses are negotiated in various departments and offices of universities and libraries. Many universities require that license negotiation, or at least a review and signature, happen through the office of general counsel and sometimes over the signature of the purchasing department. In such circumstances, the best result is delay; the worst is that the library may not secure the terms it deems most important. Other institutions delegate the negotiating and signing to library officers who have an appropriate level of responsibility and accountability for this type of legal contract. Most likely the initial contact between the library and the electronic provider involves the public service or collections librarians who are most interested in bringing the resource to campus.

One way of sharing the workload is to make sure that all selector staff receive formal or informal training in the basics and purposes of electronic licenses, so that they can see the negotiations through as far as possible and leave only the final review and approval to those with signing authority.^[18] In some libraries, the licensing effort is coordinated from the acquisitions or serials departments, the rationale being that this is where purchase orders are cut and funds released for payment. However, such an arrangement can have the effect of removing the publisher interaction from the library staff best positioned to understand a given resource and the needs of the library readers who will be using it. Whatever the delegation of duties may be at any given institution, it is clear that the tasks must be carved out in a sensible fashion, for it will be a long time before the act of licensing electronic content becomes transparent. Clearly, this new means of working is not the "old" acquisitions model. How does everyone in an institution who should be involved in crafting licensing "deals" get a share of the action?