Frederick J. Friend, Director Scholarly Communication, University College London
(f.friend@ucl.ac.uk)

1. Why has licensing become so important ?

The pressure to licence digital information has come from publishers rather than from the user community. The use of licences has spread from the software industry, through publishers of databases into publishers of full-text primary information such as academic journals. Publishers have turned to licensing for a variety of reasons, partly because licensing enables them to retain control over future use of the digital information and partly because they have not wished user privileges embodied in copyright legislation to be extended to digital publications. The user community has reacted to this move to licence rather than sell by lobbying for copyright legislation which does extend fair use and other user privileges to digital publications, and at the same time pressing publishers to incorporate into licences terms which protect user interests. Librarians across the world have adopted a two-thrust approach, preferring copyright legislation to regulate the use of digital information but, if suitable legislation is not available to them, looking for fair licensing terms.

Behind the debate about fair copyright or licensing terms have been the issues of price and profit, in theory unconnected issues but in practice issues which have shaped attitudes towards licensing. Librarians may not have been so concerned about licensing if they had not experienced several decades of price rises well above inflation for subscriptions to academic journals, leading to suspicion that publishers would be using licences to ask for more money from the user community. A parallel fear has been influencing publishers’ attitudes, the fear that libraries will use the ease of copying digital information to cancel subscriptions and reduce publishers’ profit. Early licences from publishers for the use of digital information therefore contained very restrictive terms defining the user community and the amount of copying that could be done under the licence. The story of licensing digital information is one of gradually coming to terms with these concerns, each community still protecting its interests but becoming more realistic about licensing terms.

2. Licensing by authors.

Most of the attention in the licensing debate has been concentrated upon licences between publishers and libraries, but it is important to remember that licensing can apply all the way along the chain of scholarly communication, beginning with the author. The licensing arrangements adopted for or by authors will influence the terms of licences further along the chain. Traditionally most universities have, in the interest of academic freedom, allowed their members of staff to forge their own relationships with publishers and not attempted to influence the terms under which an author assigned copyright to a publisher. Individual authors have generally not been in a strong negotiating position with publishers and have been expected to assign copyright to the publisher on a blanket basis. This issue has become increasingly important as electronic publication has enabled the same intellectual content to be packaged in different ways, and as universities have been asked to buy back intellectual content - e.g. through charges for study packs - produced by their own staff.

There is increasing interest therefore in the concept and design of authors’ licences, using contractual arrangements between employer and employee and between author and publisher to protect universities and authors from unfair exploitation. The contractual arrangements between universities and their staff vary widely, but may include some protection for the university’s interests in the exploitation of research publications or teaching packages. Licences between authors and publishers are not common - unfortunately many authors still sign contracts with publishers without thinking about IPR issues - but for those authors who are concerned about future exploitation of their work sample licences can be found on the Liblicense web site. This site is a valuable source of information on other issues described in this paper.

3. Licensing by publishers.

Publishers have invested a considerable amount of time in the design of licences for the use of digital information. Although the idea of licensing full-text publications came from the licensing of software, licences for full-text publications have required a new approach. The definition of the user population, for example, has had to be worked through, using various approaches such as number of simultaneous users, IP address or other technical definitions. The first licences from publishers for the use of digital information contained very restrictive definitions of the user population, but gradually publishers have become more relaxed about this issue, being willing now to include categories such as walk-in users which at first they were unwilling to include. A similar process has happened with the definition of the “site” in which use is licensed, moving from a very physical definition of one building to a virtual definition of the location of the authorised user wherever in the world that authorised user might be at any one time.

That is not to say, however, that publishers’ licences now reflect users’ interests in their entirety. Several difficult areas still exist. The use by a librarian of a licensed digital publication to supply copies of that publication to a user in another library (“interlibrary loan”) is generally prohibited by publishers unless only one paper (i.e. non-digital) copy is supplied. This prohibition is restricting resource-sharing amongst academic libraries. Likewise some publishers still restrict copying for study-packs, being concerned about the loss of sales of textbooks. This restriction is hampering the development by libraries of new services to meet student needs, for example for distance-learning. In the long-term the way for libraries to overcome these restrictions probably lies through securing the support of universities and authors in ensuring that the right to fair copying is protected in the contracts authors sign with publishers, but there are measures that libraries can take in the short-term to ensure that fair use is protected, measures described in the guidelines at the end of this paper.

4. The development of model licences.

In theory model licences offer a way of securing long-term agreement between publishers and librarians on the terms of licences for the use of digital information, and possibly also an acceptable alternative to copyright legislation. Provided that the terms of a model licence protected the interests of users and could be accepted by most if not all publishers, a model licence would provide a way of using contract law to achieve industry-wide agreement. Several initiatives have been undertaken to develop model licences. In July 1998 the Scientific and Professional Publishers of the Dutch Publishers Association (WPU) and the scientific educational and research institutions that are participating in the co-operative body Innovation Scientific Information Supply (IWI) announced an agreement on joint principles for entering into licensing agreements. In the UK discussions between the Publishers Association and the Joint Information Systems Committee (JISC) have led to an agreement on a model licence.

Such initiatives are very valuable, not least in demonstrating that differences between publishers and librarians which appear to be unbridgeable are capable of resolution when each party’s viewpoint is explained and understood. Often the wording of a licence reflects the situation from which a publisher or a librarian is starting, and it is important to understand the background that has led to the adoption of particular words. On the other hand the wording of a legal document should not be left open to interpretation and the words used should reflect the intention of both parties to the contract. A model licence containing definitions agreed between publishers and librarians can save time for those following in their footsteps. However, the existence of a model licence will not solve all licensing problems, nor remove the need for negotiation on every licence. In the UK, for example, the existence of the PA/JISC Model Licence has helped the drafting of a licence for NESLI, the National Electronic Site Licence Initiative, but negotiation on particular points has still been necessary with the NESLI Managing Agent and with individual publishers, some of whom are not members of the Publishers Association.

5. Protecting fair-use in libraries.

Librarians are not forced to sign any contract. If they do not like the terms of a licence, they can refuse to purchase the publication or they can ask for the terms of the licence to be amended. Much depends on the support an individual librarian receives from their institution or from other libraries. One librarian acting alone may be in a weak position in relation to a large publisher, but consortia of libraries will have the bargaining power to achieve good licensing terms. Different librarians will have different priorities, but there is a considerable degree of agreement between librarians world-wide on the main principles to be sought in licences for the use of digital publications. This agreement has been demonstrated in the statements issued by LIBER (licensing principles set out on the LIBER web site, based upon a statement from the Dutch and German librarians) and by the International Coalition of Library Consortia. Reaction from publishers, particularly to the ICOLC Statement, has been very positive, and although not all publishers’ agreements incorporate all of the ICOLC principles, there is a willingness on the part of publishers to discuss the wording of licences which can be taken up at a regional or local level. No librarian need assume that the wording of a licence is set in stone.

Whether a particular licence gives a librarian the peace of mind which comes from knowing that all use is legal, or whether a licence costs a great deal and still leaves some required use uncovered depends on the terms of the licence. The following guide, which is based upon the ICOLC Statement of Current Perspective and Preferred Practices, may be useful to IFLA libraries in ensuring that the interests of library users are met in negotiations between publishers and librarians :

A. Contract Negotiations.

1. Libraries should negotiate with publishers and other providers of information by direct negotiation or through consortia or through purchasing agents according to the method which will enable them to secure the best value for their users.
2. All charges, terms and conditions (including the arrangements for exchange rate conversion) should be negotiated and stated clearly in the contract.
3. Nondisclosure language should not preclude libraries from sharing significant terms and conditions with other libraries.

B. Pricing.

1. During a period of development of electronic products:
   1. libraries should not be asked to pay for undelivered features
   2. libraries should not be asked to pay for developmental level products that do not meet basic client needs
   3. providers should not expect libraries to bear research and development costs which should be amortised over a long-term revenue stream
   4. libraries should have the option to purchase an electronic product at less cost than the cost of the equivalent paper product.
2. Providers are encouraged to offer multiple and flexible economic models during a period of experimentation with the purchase of electronic products.
3. Bundling electronic and print subscriptions should not be the sole pricing option for the purchase of electronic journals.
4. Purchase agreements for electronic journals should not be premised upon a fixed base year expenditure.
5. Licences or purchase agreements for electronic products should not contain “no cancellation” clauses which require a library to continue paying for print subscriptions.

C. Access, Archiving, Systems and Licences.

1. Electronic copies of books and journal articles should be available before, or no later than, the publication of the book or article in its printed form.
2. The provider should grant a perpetual licence (transferable if the provider, agent or vendor changes) to the library when the library purchases the content. This licence should permit libraries to archive content that they purchase or lease, or - if access is to be from the information provider’s Web site - guarantee perpetual availability of the content.
3. Libraries that wish to mount information locally should be allowed the option to do so on the system of their choice and all systems and data should comply with appropriate standards used by libraries.
4. Libraries should have complete flexibility to choose the format in which they wish to receive and store information.
5. Licences should not limit the right of a library to integrate the data into local system infrastructures and information services.

D. Content, and Management Data, and Use.

1. Providers should not place any undue restrictions or burdens on individual authorised use, such as restrictions on downloading, storing, local printing, use of information for classroom purposes, or electronic reserves. In particular:
   1. licences should permit the “fair use” of information for non-commercial, educational, instructional and scientific purposes, including the generation of copies for non-commercial interlibrary loans
   2. libraries should commit to taking reasonable steps to prevent misuse or abuse by clients, although licences should not place liability upon institutions for misuse of content by an individual user
   3. walk-in use by clients who are not formally affiliated with the institution should be included by the provider in the contract as part of the user group.
2. Libraries must be permitted to measure use and gather relevant management information, and to share that information with other libraries.
3. Use and other management information collected should be shared between libraries and information providers.
4. The anonymity of individual users and the confidentiality of their searches must be fully-protected.
5. Information providers should not maintain information about individual or institutional use that would violate principles set by national and international organisations on the ethical use of information or on confidentiality and privacy.
6. In cases where the provider is generating full-text files, MARC bibliographic records for each title should be provided.

E. Authentication.

Information providers should be flexible as to the acceptable mechanisms for authentication or validation of users.

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