Unit 4, Part 2: Licensing

After reading Lesley Ellen Harris' s book Licensing Digital Content, I learned lots of practical new things about licensing. She writes in a lovely, easy-to-read style, and I will make sure to keep this book around in case need should arise.

In order to further simplify the book in my mind, I have little set of bullet points...

If I had to negotiate a license/contract/licensing contract (all the same thing) tomorrow I would remember to:

• get a piece of paper and write down what my library needs
• look up my libraries licensing policy, if one exists
• make sure that I am authorized to sign the license
  
• make sure the person who I am licensing from warranties that he/she is authorized to license the content (shocking! I would never think there were rogue licensors running around)
• know who my Authorized Users (sublicensors) will be, and make sure they are clearly included in the contract.
• remember UCITA and make sure my library can't end up in court in Maryland or Virginia (but what if my library is IN Maryland or Virginia?)
  
• know what I am getting-- what the content will be, what form it will take, how long I will get it for, whether it can be archived, and what rights will be granted to that content--view/print/save/share via ILL etc...
• what my library's obligations will be, and not to promise to prevent unauthorized use, because that is really hard
  
• payment, including currency
• what territory will be covered
• renewal vs. termination
• remember to be nice and ask open-ended questions

I do realize, after looking at examples of licenses in class that my list is sadly oversimplified compared to real life, but I need a basic model that fits the big picture into my mind. A diagram would be nice too, but that is a future project.

One more note--this book was written pre-SERU. I wonder if Harris would have mentioned SERU as a license alternative if it had existed when she was writing this book?

*I wanted to use the image of the book cover of Licensing Digital Content. I want to say this falls under fair use, because this blog is a kind of a review of the book. However, after reading some online material about this, I think it is possible that it would be copyright infringement. The Kentucky Department for Libraries and Archives suggests that "fair use statutes may not apply to use of digital images in online publications open to the public."

Reference:
Harris, L. E. (2002). Licensing digital content: A practical guide for librarians. Chicago: American Library Association.

Unit 4, Part 1: Licensing vs. Understanding

House of UCITA vs. House of SERU:
Two opposing philosophies of publisher-library relations.

UCITA: Uniform Computer Information Transactions Act of 1999. Similar to Uniform Commercial code, but intended for software instead of goods. Proposed state contract law that attempts to standardize the way that licensing is done. Libraries and others criticize UCITA as being skewed towards the interests of copyright holders

SERU:Shared Electronic Resource Understanding is a project hosted by NISO that attempts to articulate a set of understandings that libraries and publishers can agree on. The idea is that the costly, time-consuming process of license negotiation can be forgone, if participating libraries and publishers instead choose to operate on a level of trust based on common understandings.

Difference one:
Length and understandability:

UCITA is very long (200 pages) and very complicated. So much so that the American Bar Association said that they needed to set up tutorial groups to help each other understand what exactly UCITA was saying.

SERU is short and sweet (less than 10 pages) and written to be understandable.

Difference two.
Underlying principle/tone:

UCITA assumes that publishers are vulnerable and need to protect themselves from their users via ironclad licensing. The obsession with detail in UCITA sets a tone of combativeness:

UCITA effectively encourages publishers to maximize their short-term profits at the cost of longer term socially beneficial goals such as innovation, research and free speech( Franklin, 2003, p.1)

SERU assumes that publishers and libraries need each other, and want to work together as smoothly as possible. SERU sets a tone of shared understanding between publishers and libraries, where socially beneficial goals get a place at the table.

Difference three:
To license or not to license:

UCITA stands for uniformed standardized licensing, licensing and more licensing.

SERU stands for license-free baby (although license-free is not the same as contract-free).


Difference four.
Popularity...?

After over a decade since its 1999 proposal date, only two states have adopted UCITA. Other states have adopted "bombshelter" legislation to protect consumers from UCITA.

SERU was developed in 2007. In 2008 it was released as as NISO recommended practice RP-7-2008. There are over twenty publishers, forty academic libraries, and four consortia that have signed up to participate (Lamoureux & Bernhardt, 2008, p. 152).

References:

Franklin, J. (2003). The perils of clicking I agree: UCITA and intellectual freedom. Alki, 19(1), 10-12.

Lamoureux, S., & Bernhardt, B. (2009). Innovations: Where are they now? The Serials Librarian, 56(1-4), 146-154.

*image taken from Wikimedia Commons. Drawing of "Romeo and Juliet Act 1, Scene 1" by Sir John Gilbert. In the public domain because it has been more than 70 years since death of creator.

Unit 3: Green Paper, White Paper, Go.

The readings of this week noted the erosion of the first sale doctrine and the doctrine of fair use by the introduction of 'copyright licensing' and its accompanying technological protection. The Green/White Paper Reports put out by the Lehman group to protect the rights of digital content owners circumvented issues of fair use by employing licensing strategies. Licensing combined with technology allows copyright holders to retain control of what is done with their product after it is in the possession of the user. Licensing can even restrict use that would normally be protected by fair use guidelines and/or the first sale doctrine. Sometimes the user owns the product--like buying software; and sometimes the license is similar to a rental agreement--like a license contract between a library and an electronic journal publisher.

One of the fun things about investigating the Lehman Group Papers are the 1990's html-ish blogs that Internet users were using at the time to communicate with the Internet community (I mean, the "National Information Infrastructure") about the Lehman Group findings. One blog, Teleread--still a functioning blog with lots of interesting copyright finds--had an entry from 1995 called Lehman Panel's Report on Net Commerce in Final Phases of Tugs, Pulls and Faxes, which discussed some of the criticisms of the Green and White Papers. A particular quote from this blog illustrates Litman's point that a common strategy to create copyright law was to claim it already was law (Litman, p.95):

Discussion of court cases in the draft also seems filtered through the lenses of a copyright owner rather than users. There was one phrase, in particular, that irked many: "It has long been clear under U.S. law that the placement of a work into a computer's memory amounts to a reproduction of that work." In fact, that is a recent and controversial aspect of U.S. law.

The author of the blog noted that the Green Paper had been drafted with a pro-copyright holder bias, and noted that "One lawyer who knows Lehman says the patent commissioner has an unduly harsh fear of the dangers of technology, such as rampant infringement, without a corresponding appreciation for its upside."

The rational that brought about the Lehman group's embrace of licensing was the old tried-and-true strategy of claiming industry death would result without copyright protection from the voracious industry-consuming public. Another excellent Teleread find was a link to a current paper: Lemley, Mark A., Is the Sky Falling on the Content Industries? (August 10, 2010). The author makes some very entertaining points about how industry stakeholders were always sure that the next invention would destroy their product, whether the product was books, radio, television, movies, etc. Lemley makes a great reference (p.7)to a music industry campaign to block audio cassettes, on the ground that recording music at home would destroy radio audience-ship. He also suggests that monks probably objected to the printing press, on the grounds that it would destroy print culture (p. 1). Both Lemley's paper and Litman's book agree on the point that creators keep creating regardless of changes in media. Infringement on the public's usage rights is possibly not as necessary as Lehman and worried industry stakeholders would have Congress, and the public, believe.

One last particular reading of the week, the pro-CD vs Zeidenberg case, is a real-life example of the setting and enforcement of copyright law by litigation. This case provided a precedent for shrink-wrap licensing enforcement. The take-home message of the case seemed to be that companies could use contracts to push past the limits of copyright law. Companies can create contracts whereby users agree to relinquish rights in order to use the product--contracts and licenses can be used to secure restrictions above and beyond copyright law.
A few questions that I had after reading the case were:

1. If a book came in a wrapper with fine print that said if you removed the wrapper you were agreeing to give up your right to use the book within the guidelines of the first sale doctrine, would that be legal?
2. How can a consumer browse products at a store when there are hidden guidelines inside the packaging? What if there had been an equivalent product that did not have the same restrictions that Pro-CD had?

Note: The "Home Taping is Killing Music" image was taken from a Wikipedia reference. It was also used in the Lemley paper (with permission, one would assume). I am using it under the guidance of the four fair use factors:

1. This is a blog for educational purposes, not for profit or of any commercial value, nor likely to be read by more than a very few unlucky people.
2. The copyrighted work is an imaginative work--counts against fair use...
3. But, it is only one small image used once.
4. And, as it is now a defunct campaign of long ago, should have no effect on value of copyrighted work.

References:
Lemley, Mark A., Is the Sky Falling on the Content Industries? (August 10, 2010). Available at SSRN: http://ssrn.com/abstract=1656485

Litman, J. (2001). Digital copyright: Protecting intellectual property on the Internet. Amherst, N.Y: Prometheus Books.

ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir.1996)

Unit 2: Copyright Basics and History

The Sleeping Beauty Model of Copyright Law History:
or "Invite all the Fairies."
(Based on readings by Jessica Litman)
Litman, J. (2001). Digital copyright. Amherst (N.Y.: Prometheus Books.

According to Litman, early American copyright law was formed on the principle of idea sharing--striking a balance between author and audience in terms of who will benefit from a new work. Congress set the law based on this principle. However, as 19th and 20th century American copyright concerns moved beyond the simplicity of print media, a tradition of heavy stakeholder influence on copyright law has emerged. Inventions that provided new ways to create and present works, such as the piano roll, photography, movies, broadcast radio, television, cable and the Internet, among others, created vacuums of copyright ambiguity. Prospective copyright holders hurried to ensure all vacuums would be filled with laws that would best protect their individual interests. Stakeholders gathered and agreed amongst themselves how to divide up copyrights to the mutual benefit of all attendees, and of no benefit at all to missing parties. One of the many drawbacks that can be found in this tradition is the damage that exclusion of interested stakeholders does to the cohesive formation of the law.

I like to think of this as the Sleeping Beauty Model. This is because I find Sleeping Beauty bright and colorful and familiar, as opposed to the confusing murkiness of copyright law history. Not because the model fits perfectly. But, let's try.

So, if all the industry faeries are not invited to give gifts to the copyright law baby before proceeding to congress, excluded faeries will be vengeful, angry, and combative, and will try to alter or block the agreed-upon set of conditions. Fairies include: Broadcasters, radio and phonograph manufacturers and motion picture theater owners, map publishers, writers, composers, sheet music publishers, print publishers, organized labor, photographers, movie studios, software companies, and many many more varieties. (Note -the public is not a fairy, and will not be invited. Actually, the public just falls asleep). Congress is the little ineffective fairy who might try to moderate end products before they become law. And the copyright law baby continues to get gift after gift from an endless sequence of fairies, until she turns into a 200 page Frankenstein--which is a whole different metaphor.

On p.46 Litman notes that "The battles that preceded the enactment of the 1909 act should have demonstrated to the participants that interests excluded from negotiations could effectively block legislation." However, despite past examples its flaws, the Sleeping Beauty Model of getting things done has extended throughout the 20th century, and into the 21st century. Litman discusses how this has caused the Balance principle envisioned by Congress to be co-opted by the Bargain metaphor, and then by the Incentive metaphor, and now moving into an Property Ownership metaphor (Litman, p.81) as corporate interests guide copyright law.

Note: I was able to use the 1899 drawing Sleeping Beauty by Henry Maynell Rheam because it is in the public domain, due to Mr. Reams's death over 70 years ago. Accessed from Wikimedia Commons

Some additional notes:
1717: U.S. Passes first copyright law(p.15)
1790: U.S. Passes first copyright statue (p.15)
Original principle: neither creator nor general public should get all the benefits coming from a new work. U.S. Copyright law based on model devised for print media
1909 Copyright Act (p.36) Exclusive performance rights for copyright holders of performance art works, like lectures, plays, music. Performance rights do not apply to books.
1912 Townsend Amendment (p. 41) to protect motion picture industry from the 1909 copyright act.
1910's Motion picture industry
1920's commercial radio broadcasting
1976 Copyright Act (p.36) Initiated in 1956. p.51
1992 Audio Home Recording Act (p.36)
1998: Digital Millennium Copyright Act (p.27). Shift towards paying on a per consumption basis

Copyright law vs. Information Policy. Copyright law attempts to restrict access to information, which is detrimental to information policies issues such as expanding affordable access.

Present: copyright protection is automatic and kicks in as soon as work is fixed in permanent tangible object. Can reproduce work in fixed copies, create adaptations, perform.

Quiz:
Which doctrine says that owner has no right to control distribution of a copy of a work after it is sold? Why are copyright owners of electronic material trying to find loopholes in this doctrine?
What loophole do the Lehman group green and white papers find to work around this doctrine?

Unit 1: The Beginning.

The Electronic Publishing Industry
We started class with a discussion of the history of electronic publishing and a look at the current landscape.

Current facts:
An large, and increasing, amount of a library's budget is spent on electronic resources (including eJournals, citation/abstract databases, eBooks, collections of data, visual and music resources, and software collections). In academic libraries, a large percentage of budget goes to electronic serial subscriptions. The prices for serials subscriptions is going up, while library budgets are not keeping pace. Paid access to electronic resources has a variety of business models--for example paying an annual fee, a per-use charge, or paying for connection time (old model). Some resources are "free" but ask for donations. Some resources are supported by author pay, where contributing authors support the publication.

History:
Databases were the first electronic resource. Dialog was an early database that users could submit queries to (through a trained human intermediary). According the timeline published on Dialog's website, Dialog was created in 1967 and became available as the first commerical online service in 1972. Intermediary users of Dialog were trained in query formulation, because there was a charge for queries/time used. Queries returned citations, not full-text.
In the 1970's and 1980's more databases came online, including business and legal databases. Magnetic tape became a popular, searchable, storage format. Connect time billing was a common business model. End users continued to go through libraries or businesses to get access to commercial online services, which searched databases.
1980's to 1990's Personal computers changed the way users interacted with computers. Emergence of Internet led to wider access to electronic resources. CD roms introduce the era of end-user searching, as opposed to intermediary searching. The 'serials crisis' evolved, as prices for serials went up, and library budgets could not keep up. The cyclical relationship between libraries, users and publishers is threatened by the serials crisis. Publishers have very high profit margins, and have a sort of monopoly on information.
2000's: Steady rise in use of electronic resources. Libraries start licensing electronic resources. Serials crisis continues.

Landscape;
In this first unit we discussed various players in the electronic publishing industry and what their historical and current roles were.

• Library (example: UW)
• Library Consortia (example: WiLS, OhioLink). Groups of libraries that get together to leverage buying power.
  
• Scholarly Publisher (example: ACS, Nature)
• Commercial Publisher (example: Elsevier, Emerald, Wiley/Blackwell, Wilson, Springer). Large companies that publish academic journals in a for-profit model.
  
• Intermediary/Aggregator (example: Ebscohost, Gale, Proquest, Ovid, Ingenta, Highwire, InfoTrac, Engineering Village) Brings together collections of databases, hosts content, allows cross-database searching, assists with intermediary tasks.
  
• Intermediary (example: SWETS). Services: help with resource acquisition and maintenance, including licensing, statistics, link-resolve access, etc. Directory of intermediaries.
  
• Online Provider (example: JSTOR, Ebsco, Dialog, Project Muse, WestLaw, Proquest)
• Software Vendor (example: CrossRef)
• Information Vendor (example: LexisNexis, Dialog)
  

All of these companies have just been a blur of background scenery and logos in all my database searching. It is nice to start to separate them out into distinct entities, with (sort of) distinct roles. There seems to be overlap in the companies and their roles. Ebsco, for example is an online provider, an intermediary, and an aggregator.
The general idea that I take away is that there are several providers. Some provide just one service, some provide a "buffet" of services that libraries can choose from. Each provider has its own business model, and often interacts with other providers in an information supply chain.

References:
In addition to the class reading, I also read this article in an open access journal about the serials crisis, and found it useful and interesting:

McGuigan, Glenn S., and Robert D. Russell. "The
Business of Academic Publishing: A Strategic Analysis of the Academic
Journal Publishing Industry and its Impact on the Future of Scholarly
Publishing." E-JASL: The Electronic Journal of Academic and Special
Librarianship (2008)Print.

Class readings:

1. Miller, Ruth H. (2000). "Electronic Resources and Academic Libraries, 1980-2000: A Historical Perspective." Library Trends, 48(4), 645-670.
2. Tenopir, C. and D.W. King (2000) Toward Electronic Journals: Realities for Scientists, Librarians and Publishers. Special Libraries Association: Washington DC. Chapter 2 and 15 "History of Traditional and Electronic Scientific Journal Publishing" and "Transformation to Electronic Publishing" .
3. Roger C. Schonfeld, (2005) "JSTOR: a case study in the recent history of scholarly communications", Program: electronic library and information systems, Vol. 39 Iss: 4, pp.337 - 344
4. Armstrong, Chris & Lonsdale, Ray. (2006). “A general overview of the e-resource industry.” The E-Resources Management Handbook. UKSG Publishing. http://uksg.metapress.com/openurl.asp?genre=article&id=doi:10.1629/9552448-0-3.1.1
5. Turner, Rollo. (2006). “The vital link: the role of the intermediary in e-resources.” The E-Resources Management Handbook. UKSG Publishing http://uksg.metapress.com/openurl.asp?genre=article&id=doi:10.1629/9552448-0-3.3.1
6. Chambers, M. B. & So, S. Y. (2004). "Full-text Aggregator Database Vendors and Journal Publishers: A Study of a Complex Relationship." Serials Review, 30 (3), 183-193.
7. Mabe, Michael. (2006). “(Electronic) Journal Publishing” The E-Resources Management Handbook. UKSG Publishing. http://uksg.metapress.com/openurl.asp?genre=article&id=doi:10.1629/9552448-0-3.6.1
8. Pentz (2001) “CrossRef : a collaborative linking network” Issues in science and technology librarianship iss:29 http://www.istl.org/01-winter/article1