The readings for this week primarily focused on how to negotiate a license agreement, what the terms and clauses mean, and then moved on to “shrink-wrap” licenses and Shared Electronic Resource Understanding (SERU).
1. Harris Licensing Digital Content Chapters 3-8
2. Russell Complete Copyright Chapter 7 “Walter Clicks ‘Yes’…”
3. ALA UCITA 101 http://www.ala.org/ala/aboutala/offices/wo/woissues/copyrightb/ucita/ucita101.cfm
4. SERU Hahn, K.L. (2007). “SERU (Shared Electronic Resource Understanding).” D-Lib Magazine, 13(11/12) (http://www.dlib.org/dlib/november07/hahn/11hahn.html)
5. Josh Hadro (8/31/2009) “Texas Attorney General Orders "Big Deal" Bundle Contracts Released” Library Journal http://www.libraryjournal.com/article/CA6686338.html
Harris devoted the majority of her book outlining and defining terms in license agreements, including key license clauses and “boilerplate” clauses. She also discussed several important factors the library representative needs to keep in mind while negotiating with the licensor (vendor, publisher), including “know when to walk away” (“The Gambler” anyone? No?). Anyway, while reading through the clauses, I compared them with what I know about how the UW System Libraries work in terms of electronic resources. However, I am not privy to the agreements, just observant. While it was somewhat difficult to retain the knowledge in these sections, I am happy to know where the information is located in case I need to refer to it sometime. However, I think many of her explanations use common sense, as well as a reliance on having some kind of a draft license agreement in place as a guide in negotiation, harkening back to an earlier chapter. The Rights Granted clause is a good example of this idea. What sort of rights would the library desire? Well, what is the normal use of this resource and what might the future use be?
Some of the more important, or at least new to me, clauses include how to handle possible fears regarding the wide dissemination of materials due to Inter-Library Loans (ILL). Harris suggests that some vendors may not allow copying for ILL purposes, so the library representative might point out that one could easily just print and scan an article, disseminating it just as quickly. This suggestion is supposed to alleviate the licensor's fears? Couldn't they just not allow printing in the license agreement? How would that benefit the library? Perhaps a better way to handle this fear is to negotiate a frequency of “copies” per journal per year. Although, as discussed in class, that has its drawbacks as well.
Another interesting clause is the library and licensee obligations. As part of this clause, the licensor might try to require the library to monitor for illegal use? How? Why? When I read this, my body clenched. Would I be required to monitor patron use? I have never needed to do so in my seven years as a (student) librarian. Then I turned the page. Harris suggested to argue for including the phrase “within reasonable control”. In other words, do not guarantee that no illegal activity, such as copyright violations, will occur. Reasonable control might include posting copyright restrictions and fair use guidelines in a public place. In addition, the staff should be aware of the license terms and agreements. Does this mean everyone? What about a large academic library with student staff? I am unaware of the license agreements of our electronic resources, yet I work the reference desk and interact with patrons. Another problem in this section is the issue of tracking usage. Some licensors might try to require the library to do just that. Harris suggests that if you do track usage, especially by specific users, you should post that you are tracking. This makes me wonder whether or not the UW tracks. I believe no, but how would I know?
In terms of the boilerplate clauses, the one I found the most interesting, especially in regards to the other readings, is Governing law. Because of UCITA (more below), the licensor may wish to have the jurisdiction in a specific state, such as, oh I don't know, Maryland or Virginia. Harris ends her prose with a section on tips for negotiations and a questions section. The tips really harken back to earlier (having a working license as reference), but something she did not address was the use of recording equipment. Obviously, you would need permission, but do people record the negotiations? I think it could be beneficial to both the licensor and library. This would not be a replacement for good notes, but a fall-back position in case of varying stories. The questions chapter, or as I like to call it, did you read the book section, especially in terms of ILL, is a good point of reference and does have a few new ideas, such as what to do if the publisher does not provide you with a license and how to protect the names of the patrons.
Harris briefly addressed software licenses and UCITA, but these were not the primary subject of her book. Software licenses, as addressed by Russell and the ALA, typically fall under the “shrink-wrap” (or click wrap) license category. This means that when a user clicks “I agree” to the license, that person, or institution (?) must follow those terms, if wishing to use the software fully. The terms are non-negotiable, unlike a general license agreement, but may be challenged in court. However, the courts tend to enforce the terms under contract law. Coming out of this in the late-1990s, was the Uniform Computer Information Transactions Act (UCITA).
UCITA, as explained in the ALA reading, is a proposed state contract law, but was only ratified in two states: Virginia and Maryland. UCITA favors the software companies by not allowing software to be transferred or donated due to the license terms. The proponents argue that this will benefit commerce and is needed to promote a healthy e-economy (I was unaware that e-commerce needed any help). The opponents argue that this bit of legislation is harmful to consumers. UCITA is only valid in two states and any litigation would happen in those states (Russell) and as we learned from Harris, litigation location terms are perfectly legal and appropriate. In order to combat UCITA, three states (Iowa, North Carolina, and West Virginia) passed UTICA “bomb shell” legislation (Russell, ALA) protecting its citizens from litigation under UTICA. In 2003, several amendments were passed in order to appease the opponents. While the opponents (libraries, consumer advocates, many lawyers, financial institutions) would rather see UCITA repealed, one amendment is favorable to libraries: donations or transfers of software to public libraries and schools is now allowed under UTICA.
With all of the legislation and complicated terms, how necessary are licenses? I think the software companies would say absolutely necessary, but some publishers are beginning to change their minds, which is partially what led to the Shared Electronic Resource Understanding (SERU). Hahn provides a brief history of SERU and how it evolved. Basically, both publishers and libraries realized that negotiating license agreements took away too much valuable time and resources. Furthermore, others argued that license agreements are not legally necessary, so why have them. Instead, there could be some general concepts and guidelines. In 2006, four groups (Association of Research Libraries, the Association of Learned and Professional Society Publishers, the Society for Scholarly Publishing, and the Scholarly Publishing and Academic Resources Coalition) to explore using electronic resources without a license, yet having some kind of an agreement or standards. Eventually, NISO formed a working group to continue the discussion. Later that year, the working group came out with a draft (SERU) based on NISO best practices.
While there is an agreement on the general concepts between publishers and libraries, there still is some disagreement on the specifics. However, SERU (still in a trial period) is believed to reduce overhead and costs, but may not be applicable for high transaction or or high priced agreements. Basically, it works best for smaller parties. Nevertheless, it is an interesting idea and makes me wonder if license agreements are on their way out. In many ways that would be preferable; however, that would mean a dramatic change away from big business and conglomerations. I just cannot imagine Elsevier agreeing to SERU, as opposed to a (probably) lucrative license agreement. I am sure they did not like or appreciate the “Big Deal Bundle” rulings either.
No comments:
Post a Comment