The
LIBLICENSE Project -- Seven Years After[1]
Ann
Okerson
Zwolle
Group Meeting
February
13-14, 2004
Introduction
The LIBLICENSE
Project was established to inform and educate members of the information supply
chain, particularly (but by no means exclusively) librarians, about how
effectively to contract for electronic information resources. The project supports :
*
The LIBLICENSE web site http://www.library.yale.edu/~llicense
with
all its many resources, including the Model License.
*
The active and ongoing liblicense-l
discussion list, as an archive of the now 5700 messages in it, over the last
seven years.
*
The LIBLICENSE software (available on the Project web site), which publishers,
librarians, vendors, and other interested parties can download and use to
create and customize their own electronic resources licenses.
Creation of, and
ongoing enhancements to, the project were made possible by CLIR (the Council on
Library and Information Resources in Washington, DC and also the Digital
Library Federation (for more information see: <http://www.clir.org > and
<http://www.dlf.org>). In 1996,
CLIR made the first of several grants to Yale University Library to create and
launch the Web site, and in the fall of 1997, the organization made a further
grant to develop the freely downloadable software. In 2000-2001, the DLF supported the
development of a Model License, and most recently, in 2003, the DLF supported
the translation of the Model License into the French language. The Project has now reached maturity and
continues to benefit the research and scholarly community beyond the lifetime
of the grants. This is a brief
accounting of the Project's origins, goals, and achievements, with some
thoughts about the future.
Why Did We
Create LIBLICENSE?
The Project grew
out of the observation that, by the mid-90s, the abundance of scholarly and
scientific publishing in electronic form was putting new demands on the way
libraries and publishers conducted their business together. Where traditional print materials were
distributed by sale in an economy governed almost exclusively by copyright
statute, electronic resources were already being distributed under other
economic and business models, chiefly those governed by the special kinds of
contracts commonly called licenses. As
the number of available electronic resources delivered by publishers and
vendors was growing rapidly and seemingly without end, librarians and
publishers around the world were stumbling towards an understanding of this new
business environment. An increasing
number of players in the information chain were sitting in their offices either
creating license agreements to send to customers or reading licenses that they
had been sent by information providers.
There was a strong sense of the risks of inexperience or failure, but
without a correspondingly strong public sense of the needs of the different
members of this group and how to arrive at mutually beneficial solutions and
language.
In April of
1996, the Yale Library wrote to CLIR asking for funding to support legal and
web design expertise to create an online, World Wide Web tool to assist
academic research libraries in negotiating electronic licensing
agreements. The tool was to be an online
primer or textbook that was, from the moment of creation, accessible to any
individual organization via any standard WWW browser. As an online resource, it
could be continuously revised. At the
time, we stated:
The
reason we make this proposal is that licenses are becoming standard vehicles
for arranging for ownership, lease, or access to electronic information,
information that may take one of several formats (i.e., remote online
connection, tape or CD-ROM locally networked, or CD-ROM stand-alone). Licenses
are, for the most part, negotiated between commercial (for-profit or
not-for-profit) publishers one at a time with individual institutions. However, increasingly they are being arranged
between information providers and groups of libraries (statewide or other
consortia).
The
experience of the Yale Library, currently signing about two licenses per month
for electronic information with a variety of providers, is that few of the
licenses we are asked to sign are satisfactory to the Library and/or the
University. Therefore, we enter into a
negotiation that is characteristically complex, time-consuming, detailed, and
at times unsuccessful. Although we know
that many libraries are entering into license arrangements, we have found
little information about what licenses have been signed and with what
terms. In part, the lack of
documentation arises out of the mystique of licenses (license language not
infrequently forbids sharing terms of such agreements); their comparative newness
as a tool for the library community; and the scary fact that librarians do not
always read carefully what they sign -- they may not realize they have the
power to change the terms of a license or they may not know how to go about
doing so. The library literature offers
a few general articles about this activity, and the most reliable and up to
date help to be had is from a handful of colleagues, on a few specific
electronic titles.
The above
excerpt from the initial proposal seems worth including here, in part because
our institution is now reviewing several licenses a week, and this must surely
be true for many educational institutions.
That is, back in 1996 we were accurate in identifying the need for the
Project. In articulating the need for
LIBLICENSE, we specifically asserted the following:
*
The library and institutional (i.e., customer) market must signal its needs
strongly.
*
Negotiating individual licenses takes a great deal of time and we can shorten
that for many libraries, not just ours.
*
It is necessary to reduce, through developing clear positions and mutual
understandings, the number of contentious sections or terms contained in
licenses.
* The stakes are high and precedents
matter
What
LIBLICENSE Delivers
The educational
web site or tool offers the following:
*
Standard license terms and definitions.
*
Expanded lists of terms placed into specific contexts with recommendations for
language to use and language that should be avoided.
*
A bibliography of licensing articles, with hotlinks wherever these are available
on the Web.
*
A list of links to other web sites related to licensing.
*
A small section on authors' licenses, as increasingly we sense that authors are
licensing -- rather than transferring copyright to -- publishers. We regard this as a very appropriate trend.
*
A small section called "national site licenses", whose aim is to take
the reader to model licenses developed by national groups as well as by
consortia, associations, vendors and the like.
*
A rapidly growing "Developing
Nations Initiatives" link, which shows
how members of the traditional publishing communities are making journals,
particularly in sciences, technology, and medicine, available for free or very
cheaply to countries that cannot afford to pay.
*
The FAQ to, and downloadable version of, the actual LIBLICENSE software for
creating one's own license.
*
The site allows the reader to subscribe to the moderated liblicense-l
list and to fully search the archives of the discussion group, which now number
some 5700 messages over seven years.
*
Ability to search everything on the site.
This software is
probably the most innovative feature of the LIBLICENSE Project. Having seen the benefits of the educational
site and discussion list, we proposed to CLIR that it was possible to further
"de-mystify" electronic resources licensing by enabling customers as
well as content owners to create their own licenses, rather than needing to
always rely on attorneys to do this work.
We suggested this because of our sense that the information distributors
and library communities had made great strides in mutual understanding,
improved license language, and in their ability to work together in negotiating
licenses. In 198, the time seemed right
to try to naturalize these new understandings by developing a software for
creating legal contracts, much as does software for writing wills or creating
tenancy agreements.
CLIR responded
positively, and our legal consultant developed an ingenious and, at the same
time, practical program. It was
finalized in 2000 and made available to the world without charge. It runs on Windows operating systems and
walks the user through the creation of a license. Step by step, the software raises issues,
provides legally balanced language, and gives the user a chance to select
precise terms and conditions. The effect
is to "walk through" the issues that can arise during a contract
creation or negotiation, giving the user assistance in making informed
choices. The underlying perspective in the
software, as in the web site as a whole, is that of a librarian or educator
looking to make the best deal for his or her readers. At the same time, we have been attentive at
every turn to the needs of content providers. In fact, long and diligent work with
many publishers has made it possible to create a resource that is not biased or
one-sided.
If the software
is the most innovative part of the LIBLICENSE project, then the Model License
may be the most practical part. Recent
years have seen a growing emphasis in the information and library communities
for simplifying and standardizing the work of licensing. For example, in early 1999, four journal
subscription agencies sponsored the creation of four model electronic resources
licenses. That project, underwritten by
EBSCO, Harrassowitz, the late RoweCom,
and Swets Blackwell (Now Swets),
contacted with attorney and journal publisher John Cox (UK). Mr. Cox, along with representatives from the
agencies, consulted widely with agencies, librarians, and publishers in
different parts of the world. Their
suite of licenses was released in 2000 and revised in summer of 2001. This useful work is to be found at: <http://www.licensingmodels.com> where
it continues to be maintained by John Cox Associates.
Around the same
time, several university libraries and consortia began to move beyond
statements of principle to develop checklists of licensing desiderata to
present to their information suppliers.
And then a group of academic research library representatives meeting
under the auspices of CLIR (initially with some members also from the
Professional and Scholarly Publishing Section of the Association of American
Publishers) began crafting a proposed model or standard academic library license
built upon what had been learned from the LIBLICENSE Web and software
development. As well, CLIR supported
several meetings of this group and the drafting of the Model License, which was
done at Yale Library. The liblicense-l list announced that drafts of
the Model License were available to any librarians or publishers who wished to
review and offer comments, and many took us up on the offer, greatly enriching
and informing the process. Finally, the
Digital Library Federation circulated the drafts to its members in late 2000
and in 2001, and comments from the largest US research libraries were
incorporated into the document. The DLF
endorsed the Model License in 2001.
The Model
License has been widely noticed. E-mail
inquiries from publishers and other libraries has, over the last 2.5 years,
been voluminous. I have been asked about
this or that clause; or whether it can be copied, adapted, or modified. The answer in all cases is yes, of
course! We have not had time to track
carefully the re-purposing of the Model License, but we do know that, for
example, our own institution (Yale) has adopted it with small variations, as
has MIT, our own NorthEast Research Libraries
consortium (NERL), and our OCLC regional office, NELINET. All of these institutions do a lot of
licensing. MIT's Ellen Duranceau reported in Serials Review (Volume 29:4,
Winter 2003) that 13 of 21 publishers with whom MIT Library signed contracts
accepted the Model License with few or no changes. Our NERL consortium's librarian Joan Emmet reviewed, at my request, the NERL contracts currently
in effect. We have contracts with at
least 50 major publishers or vendors, for tens of thousands of journals and ebooks and numerous other databases. Of that number, 15 have accepted the Model
License, though often with some tweaking.
Some of these are fairly major publishers, though not the very biggest
-- as those have their own attorneys and contracts. Note that the Model License was adopted only
2.5 years ago, and many of our contracts pre-date it, going back in some cases
to 1996.
The Creators
By excellent
good fortune, the services of an experienced contract attorney, Rodney Stenlake, Esq., proved to be available at Yale. Mr. Stenlake had
left a commercial contract practice in New York City to return to university
for additional courses in the Law School.
He brought his legal and technical skills, experience, and talent to
bear throughout the Projectt. Mr. Stenlake
provided most of the legal analysis for the project, and he developed the
concept and implementation for the downloadable software. The Project was also blessed by the
contributions of a talented Web designer, Alex Edelman, then an undergraduate
web-wizard at the University of Pennsylvania, now a senior Web developer for Amazon.com.
For all of us,
the LIBLICENSE project surpassed expectations and it continues to provide many,
many satisfactions: as we receive and respond to inquiries through the Web
site's feedback form; as we reply affirmatively to requests from various library
and educational organizations to use the materials in workshop or classroom
settings; and as various libraries and publishers have told us that they have
used the software in developing their own contracts. The greatest reward is to create a work that is
well used and meets important needs. We have been so rewarded.
Futures
We and our funders are very pleased with the success of this resource,
or "tool." My logged e-mail
messages about LIBLICENSE come from around the world. Some examples:
*
I am teaching a course on digital libraries and have required all my students
to subscribe to your list.
*
My journal publishing company has benefitted from
your site and is planning to adopt a variant of your license as its
boilerplate.
*
LIBLICENSE has made me aware of so many issues I would not have learned about
otherwise.
*
This is an extraordinary resource. It
has helped me deal with very practical matters of detail that will help me make
my scholarly bibliography available to many researchers.
*
May we include your resource as a featured item in our bibliography?
*
Although I have a law degree, I have learned a lot from your site.
*
I have to give a talk at an upcoming conference (or seminar); I would like to
use screenshots from your web pages...
*
Your site is understandable to the average student, and I am very thankful for
it.
We haven't
stopped yet; last fall the Yale Library funded a translation of the Model
License into French; this was done by a copyright expert in the National
Library. However, now that we have it,
we are like the dog who caught the car:
It is a literal translation but our understanding is that, given French
law and practice, the Model is not fully applicable there, so it needs work in
order to be useful to French librarians.
In other words, I am saying that we want to extend our licensing tools
more widely to other language groups; however not only language but also law
and practice make this tricky. We need
to give this goal some more thought; it is not an easy one to achieve.
In the end, what
the LIBLICENSE Project can do, and what it does best, is inform. The conversations that must happen are
ultimately held between librarians or educators and publishers or information
providers. No process or software or
business idea will sustain itself in this new environment unless the legitimate
needs of users and producers are heard and answered. What we have learned through LIBLICENSE, and
in the negotiating fray in the last several years, is that licensing,
thoughtfully approached, can be an outstanding arena for identifying very
diverse needs and for bringing together the parties to craft resolution to
difficult issues. It can be argued that
in some ways the information community gains advantages from working in the
licensing environment, beyond those in the print world where
take-it-or-leave-it pricing was governed by a copyright regime.
Copyright and
sale are far from obsolete -- in fact strong copyright law is needed as a
foundation for effective licensing -- but licenses can offer new modes and
opportunities to do our fundamental jobs better and thus assure the survival
and prosperity of the scholarly and scientific publishing and reading
communities.