CNI April 2006

Standardized License Expression: Clarity,

Control and Fair Use

CNIApril 2006

Sharon Farb, UCLA

Daviess Menefee. Elseiver Inc.

Christopher McKenzie , John Wiley & Sons

Alicia Wise, Publishers Licensing Society

CNI April 2006

Session Outline

Why Libraries would find licensing messages helpful in their ERMs

Why Publishers might be willing to provide licensing messages

Approaches Publishers are taking to simplify license terms

Examples encoding licenses emerging ONIX licensing standard

CNI April 2006

What is a License Agreement? A License Agreement is a Legal

Contract

A verbal contract isn’t worth the paper it’s printed on

Samuel Goldwyn, Hollywood Movie Producer

CNI April 2006

0

50

100

150

200

15 Signed LicensedAgreements 1995

179 Signed LicensedAgreements 2004

Major Increase in Number ofLicense Agreements

Sharon E. Farb (2006) Negotiating Use, Persistence and Archiving: A Study of Academic Library and Publisher Perspectives on Licensing Digital Resources

CNI April 2006

DLF ERM Initiative By 1999 libraries were building Electronic Resource

Management Systems (ERMS) in-house.

Development of a “best practices” guide sponsored by DLF, published 2004.

Vendors providing ERM systems. . . .

We can now do useful things with license and contract terms!

DLF ERMI License elements serve as de facto standards.

CNI April 2006

License or Acquisition or Contract? Administrative metadata

Who are the parties? When does the license

expire? Who is the local contact?

Terms of use Authorized users Printing, downloading ILL Reserves, coursepacks… Other use restrictions

Obligations of the Parties Warranties and

indemnifications Breach remedies Conditions of termination Notice Requirements

Business terms Authorized sites Concurrent users Price, cancellation

restrictions, price caps Archival rights

CNI April 2006

What Libraries want “actionable” licenses? What actions?

Communicate to users- license compliance“The Licensee shall make reasonable efforts to provide Authorised Users with appropriate notice of the terms and conditions under which access to the Licensed Content is granted under this Agreement including, in particular, any limitations on access or use of the Licensed Content as set forth in this Agreement.”

Communicate to staff-license compliance “Where the Licensee is an academic institution or part of a not-for-profit organization, the

Licensor grants the Licensee the non-exclusive right to supply a single paper copy (whether by post, fax or secure electronic transmission equivalent to Ariel whereby the electronic file is deleted after printing) of an individual article from the Licensed Materials to another academic institution or not-for-profit organization in the same country as the Licensee for non-commercial use in the purposes of research or private study. The delivery of the Licensed Materials to for-profit institutions or directly to individuals is not permitted.”

Systematic action and calculation “Publisher may terminate this agreement ... in the event of a

material breach by Licensee if such breach has not been cured within sixty (60) days of written notice from Publisher....”

Reporting

CNI April 2006

New Standard? Why not use RELs?

Rights Expression Languages also deal with permissions and prohibitions. Can we use or adapt them?

RELs designed for Digital Rights Management. Machine enforcement requires absolutely explicit, very

granular expressions. Cannot easily accommodate case by case analysis

and/or ambiguity.

CNI April 2006

Copyright and Licenses are based on Case by Case Analysis

“[Adjudicating fair use] is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.”

[Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)]

“User may download and print a reasonable number of copies for educational or personal use.”

CNI April 2006

Ambiguity can be desirable

China Alters Language On TaiwanBy Philip P. Pan

Washington Post Foreign Service

Friday, May 13, 2005

BEIJING, May 12 -- Chinese President Hu Jintao proposed new diplomatic language Thursday aimed at ending the decades-old state of hostilities between China and Taiwan […]

Under the new language, Hu effectively agreed to open talks if Taiwan accepted the principle of "two shores, one China" while acknowledging that the two sides might differ on precisely what that term meant.

CNI April 2006

Not too granular? Must retain degree of ambiguity?

We can’t encode that way, can we?

Of course we can . . .

. . . if we can agree on a degree of granularity and a degree of precision/ambiguity that satisfies our needs.