Licensing Agreements for Online Resources: A Vendor's Perspective (Kirill Fesenko, 2005)

“Licensing Agreements for Online Resources: a Vendor's Perspective” (2005). Kitapkhana Elemi – Mir Bibliotek, no. 2: 4-7.

Kirill Fesenko, Director of Online Publishing, East View Information Services. Paper prepared for AAASS (Boston, 2004) panel “Copyright and Licensing Issues for Slavic and East European Materials.”

History

East View Publications, now East View Information Services, had been distributing periodicals, books and microforms since early 1990’s. Our transition to becoming an online vendor or aggregator, started in mid-1990’s when delivering daily newspapers in electronic form over the Internet had become more feasible technologically. It helped to decrease mailing expenses and speeded up delivery by 5 days. For the first time, East View’s clients could read daily Moscow newspapers on the same day they were published and search their contents.

This transition from paper to electronic format raised new issues. Dealing with non-electronic formats, we were not concerned too much with licensing or copyright issues (except for microfilming contracts). However, main difference between paper and electronic newspaper is that electronic newspaper can be easily copied and widely redistributed because of the inexpensiveness and ease of copying and transmitting of electronic data. In order to set some basic rules for this new kind of subscription, we posted “Subscription Terms and Conditions” on the same Web site where subscribers were accessing their online subscriptions. This document served as a prototype for more thorough licensing agreements that we use today.

Old “Subscription Terms and Conditions”

“Subscription Terms and Conditions” was a short document which libraries were not required to sign. Major points of this document were the following:

1. Files are received directly from publishers, East View does not alter the content and that the online and print editions may differ slightly.

2. All online publications are protected by copyright and may not be systematically redistributed, in whole or in part, without written permission.

3. Definition of redistribution rights for libraries as the ones limited to Fair Use by library patrons only and not allowing any systematic commercial or non-commercial redistribution.

New Licensing Agreement

By the end of the 1990’s, the number of our online titles grew to a point that we started offering them in large collections and added an IP authorization module as a preferable mode of access to online content for libraries. It became evident that libraries were increasingly interested in large electronic collections of major newspapers and journals. Interestingly, I believe we came up with the first licensing agreement only after a new subscriber asked us to provide one.

For the first draft, we used some older ideas on which original “Subscription Terms and Conditions.” Secondly, we looked through several similar documents from other database providers. I remember that these were long and somewhat complicated texts with heavy legal slang. We wanted ours to be clearer and shorter. Finally, being experienced in supplying traditional formats and seeing that transition from paper to online was rather complicated process for libraries, we wanted to make this transition and our license to be as easy as possible. In our minds, new electronic periodicals were not too much different from the paper ones—same titles offered to the same libraries on basically the same subscription model. The difference was in the format and method of access. In our licensing agreement we clarify these issues of access to East View’s online collections and conditions of their use:

1. Cost and period of subscription.

2. Institutional IP range.

3. Definition of authorized users: faculty (permanent or visiting), students and staff of the institution, on-site users of the Institution’s library and campus computer networks, and walk-in patrons not otherwise affiliated with the institution but physically present at the Institution’s site.

4. Number of authorized users: unlimited.

5. Copyright and access term clauses:

- copyright is owned by the publishers;

- Institution is responsible for implementing reasonable procedures to restrict access to Authorized users only;

- Authorized user may search, download and save articles (we provide icons for printing, saving to hard disc and e-mailing for individual articles);

- single printed copies of individual articles may be made for private use or research;

- multiple copies may be made for classroom use, provided: that no charge is made for such copies, other than a nominal charge to cover coping; that such copies are not made or distributed for commercial advantage; and that the copies bear the respected publisher’s copyright notice;

- articles may not be recompiled, manipulated, used to prepare derivative works, or published in another format without written permission from the publisher.

East View’s standard license agreement is normally page and a half long. Most libraries sign the standard text but some suggest changes and additions to our license agreement. Here is one interesting example where client insisted that certain rights are added to the license agreements, including the following:

- to electronically display the licensed material;

- to download, print, and digitally copy a reasonable portion of the licensed materials;

- to charge a reasonable fee to cover costs of copying or printing portions of licensed materials for authorized users;

- to make local digital copies of the licensed materials in order to ensure efficient use by authorized users by appropriate browser or other software;

- to extract or use information contained in the licensed materials for educational, scientific, or research purposes, including extraction and manipulation of information for the purpose of illustration, explanation, example, comment, criticism, teaching, research, or analysis.

- use a reasonable portion of the licensed materials in the preparation of course packs or other educational materials;

- to provide electronic links to the licensed materials from library’s web pages in order to increase the usefulness of the licensed materials to authorized users. Vendor staff will assist library upon request in creating such links effectively;

- use the licensed materials in connection with the preparation of or access to integrated indices to the licensed materials, including author, article, abstract and keyword indices;

- to transmit to a third party in hard copy or electronically, minimal, insubstantial amounts of the licensed materials for personal use or scholarly, educational, or scientific research or professional use but in no case for resale. Authorized users also have the right to use, with appropriate credit, figures, tables and brief excerpts from the licensed materials in the authorized user’s own scientific, scholarly and educational works;

- to fulfill a reasonable number of requests for interlibrary loan of the licensed materials from other institutions, provided such requests comply with Section 108 of the United States Copyright Law (17 USC §108) and clause 3 of the Guidelines for the Proviso of Subsection 108(g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works. Library may use print or electronic copies derived directly or indirectly from the licensed materials for the purpose of interlibrary loan with the same limitations that prevail for paper copies for that purpose made from print journals.

Usage Statistics. Vendor shall make statistics on the usage of the licensed materials by authorized users available to library in conformance with the Guidelines for the Statistical Measures of Usage of Web-Based Indexed, Abstracted, and Full Text Resources (December 3, 2001), adopted and approved by the International Consortium of Library Consortia. (East View is also adjusting its usage stats reports to comply with the COUNTER standards: http://www.projectcounter.org).

Perpetual license. In the event of subscription cancellation for any reason, library may continue to access the online subscriptions which it has paid for earlier, subject to an annual maintenance fee not to exceed ten (10) percent of the prevailing annual subscription cost.

Fair Use. Nothing in this agreement shall be interpreted to limit in any way whatsoever the library's or any authorized user's rights under the Fair Use provisions of U.S. or international law to use the licensed materials.

Expansive interpretation of libraries’ rights with regard to online content

In general, East View’s approach to treatment of Fair Use and conditions of libraries’ access to online content is expansive rather than limiting. I believe that if we think that electronic formats are more efficient in many cases than paper publications, if libraries tend to replace print collections with electronic ones and spend increasing share of acquisition funds every year to purchase online products, then libraries should not just be able to provide all traditional pre-Electronic era services to readers but also new services and features that became possible with advent of electronic formats. Some of these features were mentioned earlier.

Publishers, Vendors and Libraries: New Relationship and Changing Times

It is clear that we have entered times of even faster changes than we were used to. For example, my presentation was entitled “A Vendor's Perspective on Licensing Agreements for Online Resources.” However, is East View still a vendor in its old sense of a jobber, dealer or a middleman between publishers and libraries? I believe the role of old vendors which evolve into online vendors or aggregators—the term that I like better—has significantly increased. For example, an aggregator basically means a collector. Librarians are in a sense aggregators too. East View, as an aggregator, collects online publications, builds collections and as such plays a new role of a collection developer for subscribing libraries. In the process of collecting, processing and publishing online records of human knowledge for readers, aggregators to some point assume a role of publishers as well. East View takes original publishers’ content, rearranges it to certain extent for full text or full image databases, and builds screens that serve as “windows” for readers to this content. These are quite different activities than simply shipping paper periodicals, books and fulfilling claims.

Our relationship with publishers is based on contracts which give East View rights to process and publish their materials in our databases. In return, publishers receive a certain amount of subscription cost (royalty) from each sale (sometimes up to 50%). East View dealt with hundreds of Russian/CIS publishers and we know that one of their major concerns with respect to electronic distribution is that it can potentially damage paper circulation which serves as a main source of income for most publishers. This position of the publishers’ representative and actually a publisher of their content in an online environment, makes us feel responsible for supporting a proper balance between (1) publishers’ ability to maintain existing subscriptions, (2) libraries’ ability to acquire their content, and (3) our own ability to sustain expenses of developing and maintaining online products. It is important to note that as East View develops pricing models that do not hurt publishers’ commercial interests and are reasonable for libraries, as we make access conditions and Fair Use treatment for libraries flexible, more responsibility falls on libraries to protect rights and interests of vendors-aggregators and publishers.

Conclusion

This is why, I believe, the role of online vendors has significantly increased and a closer cooperation between aggregators and libraries is needed as libraries trust them more with the funds and user access. It is our believe that this new type of cooperation between publishers, online vendors and libraries should be only beneficial for libraries and their patrons and extend to other areas. This may include issues of online collections development, mutual digital conversion projects, database architecture and interface design, and complexities of preservation and archiving of digital materials.

The Fair Use and copyright areas are quickly changing being affected by technological innovations and decisions are often taken on a “case-by-case” basis. It is important that libraries, aggregators and publishers work together in shaping this field for the benefit of readers.