Several months ago, shortly after starting the IP Scholar term as well as teaching my first Digitization Course online, I posted a blog on licensing of electronic resources in the university library setting. The point of the blog was simple:
• Most university electronic resources in the library are governed by a license agreement that originates with the resource vendor.
• These licensing agreements are legally binding contracts.
• Almost every license agreement requires modification of the terms before it can be accepted by the library/university.
• Negotiating different licensing language for each license is resource intensive, in terms of time and the involvement of multiple layers of institutional authority on both sides.
• Despite the repeated unacceptability or impossibility of many of the clauses, very little evolution or term improvement seems to occur; that is, each new negotiation starts back at square one, over and over.
License negotiation, in this setting, appears to me to be very similar, if not identical, to the activity or practice as it existed when I began my association with it, over a decade ago. Incremental improvements have occurred, such as more systematic methods of tracking the progress of a specific license; development of licensing guidelines particular to an individual organization; increased opportunities for library licensing training; convincing the library that it actually had to do what it agreed to do, such as informing users of terms; encouraging communication of licensing terms to other library departments with a need to know like ILL; convincing my (1st) library that Friends of the Library members were not authorized users, and so forth. Additionally, more national efforts to create model library licenses (NERL, etc.) and the promotion of a memorandum of shared understanding concerning use of e-resources (SERU - but this is not a license) also have been created.
My first blog entry came to the attention of a much wider-read, established listserv, liblicense, where it generated a lively and informative discussion. Apparently, many were also experiencing frustration with the constant and time-consuming license negotiation process while others considered the issue sufficiently addressed as a result of the imaginative and valuable efforts of the SERU group as well as those pockets of consortia or associated libraries who have had success in convincing vendors to use their own model library licenses. All of these efforts are to be applauded. I'm sure I have left others out unintentionally and I am in no way criticizing such efforts. Their successes, however, are not universal, by any measure and for many of us the problem remains.
By far the most illuminating comments came from those who argued that no single model license would ever be successful because there were simply too many variables involved: types of vendors, types of resources, types of buyers (public or private institutions, for example), size and resources available to different buyers, and different governing laws and policies unique to individual states.
It is this viewpoint that resonates the most to me - it is so strikingly obvious. However appealing it is to hope that sellers and buyers of electronic resources should be able to accept the principles set forth in a document like SERU and confine their negotiations to amount and price, I fear the licensing model, as a way of doing business and of shifting liability, has become firmly imbedded. Speculating on how or why this model was meekly (?) accepted as appropriate for acquiring access to the electronic version of non-licensed print materials is probably a waste of time. One can't help but note, nevertheless, that subscribing to a print journal never involved requiring the subscriber to monitor the lawfulness of the activities of those who read it or to indemnify the journal should said user violate intellectual property laws. Why did libraries ever go along with this business model in the first place?
As hopeful an option as SERU is, it has not yet achieved significant success and acceptance. An interesting discussion of this and other efforts can be found in a 2010 article "Informing Licensing Stakeholders: Toward a More Effective Negotiation" in The Serials Librarian, Vol. 58: 1, 127-140, a panel discussion including a representative from the SERU Working Group. (see below for cite)
Those of you, on the ground, still spending your days negotiating and rehabilitating license after license agreement, do not need an article or me to tell you that the situation, overall, is pretty much the same as it has been, pockets of success here and there notwithstanding - NERL and OCUL, for example. Even those, though, start with the premise of a single license model, one-size-fits-all. The liblicense responses have convinced me that such a model is not the answer. We need to empty our full cups ("you cannot fill a cup that is already full") and open our collective minds to that notion.
What do you do when one size or one choice does not meet the needs of an industry? One obvious answer is to offer a selection of licenses addressing the primary subsets of needs. But will that help or just offer more starting points or entry into the back and forth of negotiations? If so, that may simply create more work.
Perhaps, to accommodate the many variables - type of product, type of vendor, type of institution or customer, individual jurisdictional mandates - the license or agreement needs to be parsed or dismantled into its component parts. Not such a hard thing for an instrument like one of these licenses. It's already been done repeatedly on sites that analyze the pros and cons of various sections and offer acceptable and unacceptable language. The instrument itself is already divided organizationally into sections. No doubt your own company or institution - licensor or licensee - has already developed its own internal licensing guidelines.
Suppose then, that stakeholder representatives could develop mutually acceptable, approved language for each category of the license, and, where appropriate, several approved language options for those particular categories where one size does not fit all and there are varying needs of product, vendor, buyer, etc. In short, build-a-license, customizable to meet the needs of different situations. With pre-approved clauses, the need to have each proposed language change during a negotiation taken back to the lawyers or the individual with approval authority is eliminated. Think of the potential for efficiency, consistency, customizability and a streamlined process.
This is an approach with potential - enough to warrant further exploration and we're working on it. All comments, suggestions, interested participants are welcome. Think about it. Let us hear from you -
Peggy
Cite: Chamberlain, Clint , Damijonaitis, Vida , Lamoureux, Selden Durgom , Rubinstein, Brett , Sibert, Lisa and Westfall, Micheline(2010) 'Informing Licensing Stakeholders: Toward a More Effective Negotiation', The Serials Librarian, 58: 1, 127 -- 140; url: http://dx.doi.org/10.1080/03615261003622940
