Webology, Volume 2, Number 3, October, 2005

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Contractual Solutions in Electronic Publishing Industry: A Comparative study of License Agreements


B. M. Meera
Associate Scientist, Indian Statistical Institute Library, RVCE P.O., Bangalore 560 059

K.T. Anuradha
Senior Technical Officer, National Centre for Science Information, Indian Institute of Science, Bangalore 560 012

Received August 30, 2005; Accepted October 19, 2005


Abstract

Information Technology (IT) revolution has brought global change and has impact on electronic publishing industry also. In the digital and networked environment, publishers are concerned about protecting their products from illegal use. Copyright has been proclaimed as an important weapon by the publishers to safeguard their products. In view of the increasing importance that is gained by contract law in electronic publishing, more and more libraries are engaged in signing License Agreements for getting access to all types of electronic information products. It has become imperative on the part of librarians to have knowledge of License agreements and their clauses. The body of the license agreements differs from publisher to publisher and is product dependent too. Since there is a difference between the license agreements of societal publishers and commercial publishers, an attempt is made here to carry out a comparative study of the clauses of the license agreements among commercial publishers at the first level and societal publishers at the second level. It is observed that the licensors' rights are well protected compared to that of licensees' rights.

Keywords

Intellectual Property Rights, Copyright, License Agreements, Databases

Introduction

Industrial revolution brought about changes in the economy of the world. Just as that, Information Technology (IT) revolution is bringing about global changes. IT includes any computer technology by means of which information may be recorded in documentary form (Ramaraju, 2001). One of the benefits of the electronic technology is its capability to produce, store, manipulate and distribute information of all kinds. This capability has its impact on the 'publishing industry' in recent times. 'Electronic publishing' has gained a lot of recognition and is being increasingly adopted by most of the publishers. Various societies and organizations (non-commercial) that are part of publishing industry are also moving towards electronic publishing. The user community also for the reason of 'speed of communication' increasingly proclaims electronic publishing.

In the publishing process, though the creator is the primary owner of 'Intellectual property', it is the publisher who claims the benefits of 'Intellectual Property Rights'. This is the economic aspect of publishing. In this age of networks and digital libraries, publishers are worried about the capabilities of Information Technology in transmitting millions of illegal, perfect copies across the globe with just a few keystrokes (Cornish, 1997).

The digital and networked environment has posed several problems for the copyright law. They are:

  1. In digital medium 'Literary works' are more equivalent. All copyrighted works such as pictures, text, music or movies comprise of strings of bits, fitting definitions of 'Literary works'.
  2. The plasticity nature of digital work allows them to easily transform from one form to another without a change in the character of the work. It also permits editing in a manner, which cannot be easily detected.
  3. Automatic generations of works in digital form, permitting new works to be created for which no responsibility (creator) can be designated.
  4. Replication of documents is a problem posed by digital technology to copyright law, permitting generation of multiple copies and distribution in digital form. This is observed more so in a networked environment (Anuradha, 2000; Pameela, 1994).

The digital environment raises economic and ethical issues linked to the flow of information. United States of America and European countries are speculating these issues of digital environment with little modification in their respective copyright laws.

Copyright Law in Digital Environment

Intellectual Property Laws were originally laid down by the main convention popularly known as 'Berne Convention' in 1986. To ensure and maintain balance between the rights of the users and the rights of the owners, many copyright guidelines and practices have been constructed for copyrighted materials. This balance should remain in the digital environment. These are extensively revised since first meeting, increasing the scope of the copyright and protection.

The World Intellectual Property Organization (WIPO) manages the major intellectual property rights including copyright conventions. Under these conventions each nation has provided special privileges for librarians to copy and distribute copyrighted material on request for academic and research purpose in print environment and this is referred as "Fair dealing" (in Australia, Canada and UK) or "Fair use" (in USA) in different countries. This privilege of librarians should be protected in digital environment also, as more and more information is becoming available only in electronic formats and the users legitimate rights to use the copyrighted material must be protected (Norman, 1997).

American Scenario

Fair use doctrine is critically an important doctrine in US copyright law. What it seems to be saying is that there may be good reasons for limited copying or distribution of published works without the permission of the copyright owner so long as the copying does not harm the copyright owner but nevertheless benefits either the individual or society generally. Examples of fair use of copyrighted materials include quotation of excerpts in a review or critique, or use of a portion of material for educational purposes, literary criticism or news reporting (LLL, 2004; USCO, 2005). Duane E. Webster is of the opinion that, a liberal interpretation of the fair use doctrine, which is an integral part of the print environment, should be applicable to electronic environment also. This law allows users of copyrighted materials -teachers, students, scholars, and artists- to use these materials without seeking permission from the creator or publisher and without paying copyright fees. Fair use allows users to draw on the work of others. It allows scholars to advance a new argument, reviewers to criticize, artists to parody and teachers to acquaint students with fresh insights (Webster, 1997). The law lists the following four factors as the ones to be evaluated in determining whether a particular use of a copyrighted work is a permitted "fair use," rather than an infringement of the copyright (Pameela, 1994; SUL, 2004):

The National Information Infrastructure (NII), an initiative by the Clinton administration was instrumental in setting up a working group of intellectual property rights in the electronic environment in 1995 convening all the stakeholders to negotiate guidelines for the fair use of electronic materials in a variety of nonprofit educational contexts. The conference on Fair use (CONFU) proposed guidelines in 1997 and failed to achieve consensus support. The NII proposed 'White Paper' legislation, which is silent on "fair use". Experts in education and library arena believe that without a clearly stated understanding of what constitutes fair use in digital environment, the proposed white paper will upset the balance between owners and users of information (Webster, 1997).

There may be negotiations over the permitted use and the price. This is where "The Licensing" process has gained its entry in the digital environment in libraries, moving towards "Pay-per-view" attitude of publishing industry.

European Scenario

In Europe, few countries are recognized as "Copyright countries", where the creator releases almost all his rights to the rights holder who is usually an investor, responsible for the distribution of the work and often this is a "Corporate body". Few others are recognized as "Droit d'auteur" countries, where the creator is an individual who retains the initial rights. S/he can never transfer the economic rights. This is intended to protect the work of the mind, not permitting free use by third parties.

Keeping these two sectors in mind, European court of justice is trying to harmonize their legislation. Europe is clearly moving towards contractual solutions. France views the principle of "Fair use" of USA as foreign concept. The two systems 'Copyright' and "Droit d'auteur" are advantageous in their own way. Copyright gives more weights to users. Touching the rights of the producer is justified if it is for common good, which is quite similar to the theory of "Fair dealing". Droit d'auteurs allows creator to control the use made of his/her work through the right of paternity and the right of the integrity of his works. It is highly unlikely that any one system is good enough to manage documents in digital from. Several systems could co-exist to mange the copyright crisis of digital publishing (Battisti, 2001).

The European Commission (DGXIII) organized a meeting in November 1993 in Luxembourg to raise many issues concerning libraries with respect to copyright in digital environment. European Copyright User Platform (ECUP) was started in 1994 under the libraries program and to conduct a copyright awareness campaign. Activities were permitted to extend for three more years as a concerted action (ECUP+). The goals of ECUP+ were to increase awareness and to stimulate discussion on copyright issues amongst librarians and with rights holders, to draw up model license clauses for the acquisition and use of electronic information and to establish a copyright focal point. European Countries are also moving towards "license agreements", thereby curtailing the benefits of new technology to the libraries and public at large. Europe also has proposed a "Green paper" ignoring the needs of librarians and thereby upholding the role of "license agreement" in digital environment (Giavarra, 1997; 2001).

At this juncture the use of licenses and therefore the introduction of contract law to regulate the use of digital resources is viewed as a solution to help publishers, aggregators and libraries in protecting copyright in the present electronic environment (Meera, 2000).

Need and Objective

The license is the vehicle that sets out the circumstances -- terms and conditions -- relating to the perimeter of permitted uses. Librarians, as content owners, require a license agreement, whenever someone else wants to use the content. As a user of digital content, librarians need a License agreement whenever they use the content of others. A librarian spends more time negotiating license agreements, as acquiring digital content is different from product to product. In fact, often they pay for content, which they do not physically acquire. At present, there are no standard digital license agreements in any industry and each license has its own clauses defined.

Under these circumstances, librarians should educate themselves regarding license agreement by discussing with their peers. Also very helpful is to review as many license agreements as possible. Hence it is a combination of copyright law, technology, education and licenses, which help librarians to license their own content, as well as ensure access to the digital content of others (Anuradha, 2000; Harris, 2000b). It is felt important at this point that the curriculum of Library and Information Science schools should incorporate courses related to copyright and license agreement.

In this article an attempt has been made to identify and analyze different clauses, which needs to be included in the site license agreements. In order to get access to e-content, signing these licenses has become an order of the day in most of the scientific and academic libraries. Also, the legal implications and the legal language have necessitated the present day librarians to get them equipped with the knowledge of site license agreements. There has been no comprehensive study carried out comparing different license agreements in recent times except for a preliminary study done during 2000 (Meera, 2000).

The main objective of the study is to make a comprehensive, comparative study of three commercial and three societal license agreements and to investigate the differences and similarities among themselves in digital environment from librarian's point of view.

What is a License Agreement?

A license agreement is a written contract between a user and a content owner that sets out the terms and conditions under which a user can use the content (Harris, 2000a). According to Kaye, licenses are a fact of life in conducting business in the electronic environment. Electronic information providers have considered licenses as a legal means of controlling the use of their products (Kaye, 1999). A license agreement is a legally binding contract between two parties. In the process of licensing digital materials like books, periodicals and databases, the licensing agreement will set out the conditions of use of the digital content -- at a specific price for a specified period of time (Harris, 2001a).

Types of License Agreements

License agreement can be classified into different categories based on their purpose and content such as:

1. Societal/Commercial
License agreement generated by a society, which is a non-profit making organisation such as American Mathematical Society to protect their intellectual property rights, are societal in nature. They are not stringent in their approach. Whereas, commercial publishers seem to be giving more importance for license agreement, keeping financial gain as their motive.

2. Negotiable/non-negotiable
License agreements may be negotiable or non-negotiable. A negotiable agreement is one where the parties to the agreement discuss and agree upon what terms and conditions should be included in the agreement. A non-negotiable agreement is one where the terms and conditions in the agreement are set forth by one party and must be accepted by the other party if s/he wants the goods/services supplied (Harris, 2001b).

3. Single user/Consortia
When an institution enters into a contract with the publisher, it is called as single user license. If a group of institutions (either based on geographical locations or like-mindedness) join together and negotiate with the publishers then it is called as consortia license agreement.

4. License for bibliographic database and full text database
In a digital environment, license agreements are observed for various products. But librarians usually deal with licenses for either bibliographic or full text databases whose terms and conditions vary marginally.

Comparative study

The site license agreements differ from one another and in this case it is from publisher to publisher. Authorized signatory to the site license agreements should be an administrative head of the Institution since it involves legal aspects. Before signing these licenses, terms and conditions should be carefully studied. An exhaustive list of 40 clauses is prepared for this comparative study (Harris, 2001b; Kaye, 1999; YUL, 2004). In Table 1 and Table 2, marked differences and similarities among the different clauses of contract law as executed by the three major commercial publishers at first level and three societal publishers at the second level are traced out. The three scales used are 'Well defined', 'Defined' and 'Not defined' with values 10, 5 and 0 respectively. However, clauses 1-5 are general in nature hence do not carry any ranking during analysis.

Analysis and Conclusions

It is observed that some of the clauses such as country of origin, database type, agreement contents, access mode, authentication, governing law, which are general in nature are very well defined in all the agreements. However, some of the important clauses such as archiving, technical support and usage report are not clearly defined in most of the agreements. An important clause like trial access is not considered for inclusion in any of these licenses, though some of these publishers offer trial access on request.

Web of Science (WoS) from the Institute for Scientific Information (ISI) has well defined some clauses such as user rights, governing law and early termination but has left out clauses like technical support and training. WoS has scored 160 points (27.58%). Engineering Village (EIV) from Elsevier Science (ES) has well defined clauses such as Authorized users, and Confidentiality of the agreement but not defined clauses like technical support, training, and governing law. EIV has scored 180 points (31%). Springer Journals (SJ) from Springer Verlag (SV) appears to be the most comprehensive among the three commercial licenses, scoring 240 points (43.37%). The clauses such as unauthorized use, and security protocol are well defined but a few clauses such as trial access, and documentation are unattended by Springer Verlag.

MathSci Net (MSN) from American Mathematical Society (AMS) as a publisher is more considerate towards the licensee. The clauses such as unauthorized use, and technical support are well defined whereas confidentiality of the agreement, and dispute resolution are not defined. MSN has scored 200 points (29.41%). SciFinder Scholar (SFS) from American Chemical Society (ACS) has well defined clauses such as confidentiality of agreement, and early termination but not defined training and amendment clauses. SFS has scored 180 points (26.47%). ACM Journals (AJ) from American Computing Machinary (ACM) appears to be the most comprehensive scoring 300 (44.11%) among societal license agreements. AJ has well defined confidentiality of user data and documentation clauses. However they have not defined clauses such as confidentiality of agreement and disclaimer.

We have observed that the societal licenses are not stringent in their approach but the commercial publishers seem to be giving more importance in terms of protecting their own rights as market beneficiaries. Also, the licensors' rights are well protected compared to that of licensees' rights.

In this study license clauses of commercial publishers and societal publishers are carried out at two different levels. Comparison is done among homogeneous groups. Similar study can be done between commercial publisher and societal publisher who have top ranked in this study, leading to comparison among heterogeneous sets. Such a study may be fruitful in identifying pin pointedly the difference in commercial approach and non-commercial approach in publishing industry. Also, similar study can be done to evaluate the situation in single user setup and consortia set up. Such a study would enable librarians to identify the advantages and disadvantages of joining a consortia depending upon the variable factors of individual libraries.

The role of the legislation is to secure the interests of the individuals. In doing so, it should not neglect the interests of the general public. It must bring a balance between the two. In digital environment, rights holders can exercise tight control over the use made of their works through a combination of technological measures, contractual practices and copyright law principles. This will jeopardize the role of librarians in the free flow of information. Keeping all these constraints in mind, site license agreements should be constructed so as to not infringe too much upon the privileges given to Librarians with respect to copyright in print environment.

References




Appendixes

Web sites of License Agreements consulted:
  1. http://www.isinet.com/products/citation/wos
  2. http://www.engineeringvillage2.org/controller/servlet/controller
  3. http://link.springer.de/
  4. http://www.ams.org/
  5. http://www.cas.org/SCIFINDER/SCHOLAR
  6. http://www.acm.org/


Table 1. Comparative Account of Commercial Site License Agreements
Sl No Clauses ISI (WOS) ES (EIV) SV (SJ)
1 Country of Origin USA USA Germany
2 Database Type Bibliographic Bibliographic (Service Provider) Full Text
3 Agreement Contents Grants License to access Web of Science database and third party content to licensee Grants License to access Compendex, INSPEC and CEC Press ENGnetBASE databases and third party content to licensee Grants License to access Springer digital library collection and services
4 Delivery/Access Mode Online Online Online
5 Authentication/Access type IP Authentication IP Authentication IP Authentication
6 Concurrent Users Not Defined Not Defined Defined
7 Period/Term Well Defined Well Defined Well Defined
8 Renewal Defined Well Defined Well Defined
9 Payments Well Defined Well Defined Well Defined
10 Archiving Defined Not Defined Well Defined
11 Authorized Use Well Defined Well Defined Well Defined
12 Authorized User Defined (Walk-in users not defined) Well Defined including walk-in users Well Defined including walk-in users
13 User Rights (Access, browse, search, view, download, print) Well Defined Well Defined Well Defined
14 Technical Support Not Defined Not Defined Defined
15 Training Not Defined Not Defined Mentioned (Not Defined)
16 Usage Report Not Defined Defined Well Defined
17 Licensee Undertaking Defined Defined Defined
18 Unauthorized Use Well Defined (legends, promotion/advertising) Well Defined (Usage restrictions, alteration, Notice, Recompilation) Well Defined (Commercial, redistribution, reselling, sublicensing, archiving, Interlibrary Loan, Legends, promotion, advertising
19 Confidentiality of Access Not Defined Not Defined Well Defined
20 Confidentiality of user data Not Defined Not Defined Not Defined
21 Confidentiality of agreement Not Defined Well Defined Well Defined
22 Security Protocol Not Defined Not Defined Well Defined
23 Early Termination Well Defined Defined Defined
24 Perpetual License Not Defined Not Defined Not Defined
25 Warranty Well Defined Well Defined Well Defined
26 Disclaimer (with respect to database content) Defined Well Defined Well Defined
27 Liability Well Defined Defined Defined
28 Indemnities Not Defined Well Defined Well Defined
29 Copyright Proprietary rights Defined Proprietary rights Defined Proprietary rights Defined
30 Governing Law/Attorney Fees Well Defined Not Defined Defined
31 Dispute Resolution Defined Not Defined Well Defined
32 Force Majeure Defined Well Defined Well Defined
33 Entire Agreement Defined Well Defined Not Defined
34 Taxes Defined Well Defined Defined
35 Amendment Not Defined Defined Not Defined
36 Severability Defined Well Defined Well Defined
37 Notices Defined Not Defined Well Defined
38 Third Party Rights Well Defined Not Defined Not Defined
39 Trial Access Not Defined Not Defined Not Defined
40 Documentation (with respect to database content) Not Defined Not Defined Not Defined




Table 2. Comparative Account of Societal Site License Agreements
Sl No Clauses MSN (AMS) SFS (ACM) AJ (ACM)
1 Country of Origin USA USA USA
2 Database Type Bibliographic Bibliographic Full Text
3 Agreement Contents Grants License to access Mathematical reviews, Current Mathematical Publications Grants License to Chemical Abstracts and MEDLINE Grants License to access ACM digital Library collection and services
4 Delivery/Access Mode Online Online Online
5 Authentication/Access type IP Authentication - Well Defined IP Authentication - Well Defined IP Authentication - Well Defined
6 Concurrent Users Well Defined Well Defined Well Defined
7 Period/Term Well Defined Well Defined Well Defined
8 Renewal Well Defined Well Defined Well Defined
9 Payments Well Defined (including fee raise) Well Defined (including fee raise) Well Defined
10 Archiving Defined (archival access denied) Not Defined Defined
11 Authorized Use Well Defined Well Defined (making users aware of terms and conditions of the license agreement) Well Defined
12 Authorized User Well Defined (Walk-in users not defined) Well Defined (Walk-in users not defined) Well Defined (Walk-in users not defined)
13 User Rights (Access, browse, search, view, download, print) Well Defined Well Defined Well Defined (display, digital copy, print copy, recover copying costs)
14 Technical Support Well Defined Not Defined Well Defined
15 Training Not Defined Not Defined Well Defined
16 Usage Report Not Defined Not Defined Well Defined
17 Licensee Undertaking Well Defined Well Defined Well Defined
18 Unauthorized Use Well Defined (Robots restricted, Interlibrary Loan is permitted, recompilation, republication not allowed) Well Defined (terminating Access to unauthorized users, non commercial use of data) Well Defined (Notification of licensed materials, removal of copyright notices, robots allowed, interlibrary loan permitted, non commercial use)
19 Confidentiality of Access Not Defined Not Defined Not Defined
20 Confidentiality of user data Not Defined Not Defined Well Defined
21 Confidentiality of agreement Not Defined Well Defined Not Defined
22 Security Protocol Defined Not Defined Well Defined
23 Early Termination Well Defined (from licensee as well as Licensors point of view) Well Defined (from licensee as well as Licensors point of view) Well Defined
24 Perpetual License Not Defined Not Defined Well Defined
25 Warranty Well Defined Well Defined Well Defined
26 Disclaimer Well Defined Well Defined Not Defined
27 Liability Well Defined Well Defined Defined
28 Indemnities Not Defined Not Defined Well Defined
29 Copyright Well Defined Well Defined Well Defined
30 Governing Law/Attorney Fees Defined Defined Well Defined
31 Dispute Resolution Not Defined Not Defined Well Defined
32 Force Majeure Not Defined Not Defined Well Defined
33 Entire Agreement Well Defined Well Defined Well Defined
34 Taxes Not Defined Not Defined Well Defined
35 Amendment Defined Not Defined Well Defined
36 Severability Well Defined Not Defined Well Defined
37 Notices Not Defined Well Defined Well Defined
38 Third Party Rights Defined Defined Well Defined
39 Trial Access Not Defined Not Defined Not Defined
40 Documentation (with respect to database content) Defined Not Defined Well Defined


Bibliographic information of this paper for citing:

Meera, B.M. & Anuradha, K.T. (2005). "Contractual Solutions in Electronic Publishing Industry: A Comparative study of License Agreements." Webology, 2 (3), Article 18. Available at: http://www.webology.org/2005/v2n3/a18.html

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Copyright © 2005, B.M. Meera & K.T. Anuradha.