Tuula Haavisto
Licensing and libraries
CELIP Project Manager
New ways in library purchasing
Licensing is the way to acquire library material in future. Concerning web documents, partly also CD-ROMs and other electronic resources in physical form, we buy in future access to information, no more ownership of physical objects. Professional skills in acquisition as well as the whole acquisition policy must be developed in accordance with this fact.
The copyright legislation has a relation to licensing:
The copyright law gives the limits in which there is no need for permitted use, licensing agreements and/or fees. This varies from country to country, but concern usually copying for private purposes, education and research, safety copying in libraries and archives, reproducing for visually impaired or other handicapped etc. Still, licensing agreements will be the major way to acquire electronic documents to libraries. As well as we now order and pay for journals and books, we have to agree about provisions and pay for use of electronic material.
Today most of chargeable web material is offered by international producers. Therefore, a typical negotiation situation between the licensor = the publisher and the licensee = the library can be described in the following way:
- contract texts mainly in English (lawyer jargon), in many pages,
- draft texts made by the licensor, probably according to a legislation, which differs from the law tradition of the licensee,
- the representative of the licensor is working with the licenses on daily basis, probably a lawyer by profession.
As one can see, the parties are not equal. This is a problem. In some countries, the contract law is protecting the weaker party in negotiations via a clause denying contracts where any contract partner would be put in weaker position than what is granted in the concerned law, in our case in the copyright law. In spite of this, libraries must learn new ways to survive in the new purchasing environment.
The digital world has inspired also strong movements for non-commercial research publishing, or for selling the digitised material on lower price to poorer countries. The eIFL consortia, initiated by the Open Society Institute (OSI), are an example of this thinking: once digitised, the same material can be sold to poorer countries on lower price - it is business anyway. There is an initiative by OSI and WHO (World Health Organisation), to continue these projects especially on the medical and health information areas. A similar movement has born among researchers: thousands of biomedicine researchers have after September 2001 refused to publish their articles in commercial academic journals, if the publisher does not promise to publish the concerned article on some chargeless forum six months after the first, commercial publication.
However, the focus of this article is the commercial information market.
Libraries join together
On the commercial electronic information market, the main strategy of libraries is to form consortia, to combine their forces. There is a difference in negotiations if you have behind you 80 libraries or only your own single library. In recent years libraries have seen that there really is a point in developing their common strategies. The national consortia have grown more powerful negotiation parties who get into the contracts their own formulations and do no more only sign the “standard" contract texts offered by the licensors. International co-operation in the framework of ICOLC, International Coalition for Library Consortia, has also put forward the library argumentation.
The pricing policy, as well as the whole market scene in the field of commercial electronic documents is in turbulent phase. The vendors do seek models for pricing, more or less in discussion with libraries, but the situation is not stable yet. From the producers' point of view, investments for the web production are expensive. They also have to maintain double publishing system: it takes time before they can give up to produce paper versions of their products. A strong element to bring still more unstability to the market are the numerous mergers of publishers, subscription agencies and other vendors which have taken place in recent years - and there seems to be no end to this movement.
A license agreement
A good advice for reading a draft contract before signing is to think "how do these formulations work in a crisis situation?". As long as things go well, only the main parts of the contract are needed, but when there is a disagreement between the licensor and the licensee, also the smallest sentences of the contract may turn to be important.
Things to be agreed in a licence agreement are e.g.:
- Definitions
- Choice of law and court
- The Rights granted under the Licence
- Usage Restrictions
- Term and Termination
- Delivery and Access to the Licensed Materials
- Licence Fee
- Licensee's (Library) Undertakings
- Implementation and Evaluation
- Warranties, Undertakings, Indemnities
Licensing agreements are done under the contract law. Thus, librarians must get acquainted with their national contract law. To be able to tell the provisions of use to users every librarian must know at least the basic things of licensing.
A good example of the importance of reading the contract law is the so-called shrink-wrap license. It often happens that you get a CD-ROM or a computer programme in a plastic cover saying: by breaking the cover you bound yourself to a licensing contract. But attention: contracts without a signature are legal only in some countries, e.g. in the United States. Therefore, it is important to check in the national contract law, if it is recognising a contract without a signature by hand. If not, you can forget the shrink-wrap license.
Material to be licensed - a matter of access to information
In most countries licensing agreements have since now been made by or for research libraries. The reason is simple: most of the material available has been most interesting for their users. Outside the English-speaking countries, not too much interesting material for public library users is available. For a break-down in public libraries, the material should be in the national language and of general interest. General interest often means also commercial potential. Here one can see a possible problem: will commercial providers offer their material via public libraries? What if they deny the library use of their web resources? This might be a political challenge in future, connected with free access to knowledge and culture.
There is also an other political connection in licensing matters. Licensing fees are one of the concrete answers to the question why libraries would be more expensive in the information society than before? The web resources will be parallel material to all other and existing material. Only small parts of paper material can be replaced by documents found on Internet.
Shared licensing, licensing consortia[1]
As mentioned before, libraries have developed strategies to survive with the challenges of licensing. They can network in one form or another.
The main strategy to join forces is to create licensing consortia. They can be country-wide, state-wide, region-wide, local, among a certain type of libraries (e.g. research libraries) or on some other basis. The main point is that libraries join together to share the burden of the work and/or the licensing costs. In many cases the consortia have adopted some kind of political viewpoint, too, expressing the common opinions of the concerned libraries.
An important thing is, who is paying for the licensing agreement. The financing source can be the libraries themselves like in Italy, the Netherlands, and the United Kingdom. In the Nordic countries the government is granting part of this material, in Greece and Slovenia the whole material to libraries - maybe not for ever, but at least to begin. The Hungarian and Czech governments do grant the basic material to their research libraries, too. The best case is, if the libraries manage to get the access to electronic information included into national information society strategies and policies. It helps to get government support to the licensing costs.
The general definition of a consortium says: A temporary co-operation of several powers or large interests to effect some common purpose. It is important to agree about certain rules among the consortia members, and write them into a consortium agreement. The consortium members must decide, who will manage the consortium: a member of the consortium, a new legal entity founded by the partners or an outside agent (maybe commercial, a subscription agent or alike). The experiences from different countries tell that none of these models is the only right one, the solution must be found according to the situation.
Further, a consortium agreement must define at least:
- who are the partners,
- what is the purpose of the consortium,
- which material will be acquired (e.g. only electronic or electronic and paper material),
- administered by a legal entity or via an agreement between the partners,
- share of costs,
- how the consortium is run in practice, responsibilities,
- what happens in unexpected situations or in problems (one partner wants to leave, the whole consortia comes to an end).
Licensing information for librarians
CELIP project, Central and Eastern European Licensing Information Platform (www.eblida.org/celip/) organised during the year 2001 a series of licensing workshops in ten Central and Eastern European countries. The target in addition to disseminate information, was to help librarians in these countries to network with each others in this topic, as well as maintain and create relations with the national publishers and other producers about the problems of electronic publishing. The materials of this project, including the State-of-the-Art report on Libraries and Licensing in these countries, gives a lot of practical information about different licensing situations.
This work is now continuing in other countries where eIFL Direct project by OSI is active.
More information about licensing
Internet offers a lot of licensing information on both principal and practical level - some links below. All these links have been up-dated in August 2002.
There are two important general information resources, which are good starting points to get further:
The TECUP project (Testbed implementation of the ECUP framework) produced a lot of useful material (in August 2002 only one of these is available on the web, but the situation should be repaired):
- Memorandum of Understanding, created by both users and rightowners
- Towards consensus on the Electronic Use of Publications in Libraries - Report on strategy issues and recommendations, prepared by Thomas Dreier
- Preliminary analysis of legal aspects in current business models, prepared by Emanuella Giavarra
- Evaluation and recommendations on contracts and licences, prepared by Emanuella Giavarra
European statements and documents:
- EBLIDA Position on User Rights in Electronic Documents:
http://www.eblida.org/ecup/docs/policy21.htm
- CECUP Position on User Rights in Electronic Documents, which is a version of the EBLIDA Statement:
http://www.eblida.org/cecup/docs/cecuppos.htm
- Licensing Digital Resources: How to avoid the legal pitfalls? ECUP/CELIP Document (2nd ed. 2001)
http://www.eblida.org/celip/documents/doc.htm
(available on the net or in printed form also in many other languages, e.g. in Bulgarian, Finnish, French, Italian, and German)
- Pilar, Jindrich: The Situation in the Sphere of Consortia and Licensing of Information Sources in the Czech Republic. Liber Quarterly 11(2001)1:42-52
- Giordano, Tommaso: Library Consortium Models in Europe: a Comparative Analysis. Alexandria 14(2002)1:41-52
Single statements and consortia documents from different parts of the world:
- Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information (ICOLC, March 1998),
http://www.library.yale.edu/consortia/statement.html ; the first up-dating, December 2001:
http://www.library.yale.edu/consortia/2001currentpractices.htm
- Guidelines for Statistical Measures of Usage of Web-Based Information Resources. ICOLC, December 2001 revision of original November 1998 Guidelines:
http://www.library.yale.edu/consortia/2001webstats.htm
- The "Guidelines and Checklist for Libraries" (October 1997), developed by a consortium of universities in the Netherlands and Germany:
http://cwis.kub.nl/~dbi/english/license/licprinc.htm
- The "Principles for Licensing Electronic Resources" (July 1997), promulgated jointly by the American Association of Law Libraries, the American Library Association, the Association of Academic Health Sciences Libraries, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. That statement is available at
http://www.arl.org/scomm/licensing/principles.html
- EIFL Direct homepage: http://www.eifl.net
- WHO & OSI initiative: http://www.healthinternetwork.net
Licensing terminology:
- Licensing Digital Resources: How to avoid the legal pitfalls? See above
- US Liblicense List of License Vocabulary : Definitions of Words and Phrases Commonly Found in Licensing Agreements http://www.library.yale.edu/~llicense/definiti.shtml
Licensing consortia information and consortia web pages from different countries:
- General source: The ICOLC web page is listing tens of consortia web pages, giving both general descriptions of the consortia and links to their home pages http://www.library.yale.edu/consortia/
Footnotes
[1] This part is based on Emanuella Giavarras' material - thank for that.
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