Category Archives: Copyright

The Rock and the Hard Place (Part 2): Opening Up License Negotiation

The following is the second in a series of posts on the subscription-based model and open access alternatives, and how each get stuck from their respective ends of the scholarly information supply chain.  In addition to the usual disclaimer regarding my own opinions expressed here, these should also not be interpreted as a substitute for legal advice.

In my last post I outlined one side of scholarly communication — the subscription renewal process – in underrepresented detail, revealing places where it is stuck in arduous workflow, inefficient systems, and complex, problematic licenses. In addition to pointing out the subscription model’s own struggles, I acknowledge its perpetuation works directly against investment in open access alternatives. Seeing the shared predicament from each respective end, I wondered how these two workflows come together in practice. Beyond our company in misery, this post will explore where collaborations, specifically in the realm of licensing, have made progress toward alternatives to traditional publishing and subscription-based acquisition.

Contract negotiation is an activity associated with the subscription model that most often occurs when placing new orders or at renewal. In many cases this responsibility is performed by collection management or acquisitions, usually with support of the institution’s general counsel. Scholarly communication staff also interpret contracts as they assist authors in negotiating publishing terms and retention of authors’ copyright. The scholarly communication office might also be involved in contract negotiation if they are a publishing entity themselves. A third player, interlibrary loan, also plays a role in licensing terms, interpreting copyright and fair use as it relates to day-to-day borrowing and lending, and copyright fee payment associated with these activities.

For other obvious reasons, these areas of the library are key stakeholders in the subscription renewal process. If we cancel, what will the faculty reaction be? How will the subscription savings through cancellation effect the cost of ILL? If we renew, what does this say about our efforts in promoting open access? In addition to this, the skillset these faculty share in negotiation and the interpretation of copyright in particular reveals a unique collaborative opportunity for subscription and open access workflows.

Bringing these shared skillsets together in the licensing process allows for a more comprehensive awareness of where contracts can restrict rights granted by copyright law. More specifically these perspectives can quickly identify key terms that can best mitigate that risk and influence other favorable objectives. The LIBLICENSE project is an excellent starting point for understanding general license terms and those specific to the needs of libraries. I highlight examples of some commonly sought terms below for which the collaborative contexts I’ve mentioned have been most helpful in addressing. Relevant pages and discussion threads from LIBLICENSE and other resources are linked within.

In terms of content and acquisition:
• Post-cancellation access (see perpetual license)
• Emergency cancellation clause (see force majeure and early termination)
• Title swap and cancellation allowance
• Content caps on changed or lost content
• Pricing caps – the larger or longer the deal, the lower the cap

In terms of ILL and copyright:
• Allowing ILL with more liberal interpretation for electronic access (see 1997 ILL straw poll)
• Assert/Do not remain silent on copyright (see section 3.3 model license “ No Diminution of Rights” and Fair Use assumptions discussion thread)

In terms of open access:
• Assert author rights (see 3.4 model license “Authors’ Own Works” and also COAR’s 2013 report: OA Clauses in Publishers Licenses )
• Eliminate or ameliorate confidentiality and non-disclosure clauses (see also ARL recommendation)
• Allow for text and data mining (see Request: Text and Data Mining Licenses…Language thread)

Though many of these terms are generally accepted among the library profession and even have the backing of national and international organizations, publishing and other industries have their own generally accepted clauses and the backing of their organizations. This is why it can be difficult, unrealistic even, for the single acquisitions staff responsible for negotiation to push for all these on her own.  A major subscription contract renewal is an important opportunity for many to speak with a unified voice, not just on behalf of buyers and content, but on behalf of authors and of a wider audience of users. In addition to bolstering well known terms and issues, these multiple perspectives are key to introducing new ideas into a traditional negotiation.

Sometimes new ideas (and even traditional ones) will not result in accepted contract terms because they are dealt with entirely separately from the renewal process, or because they do not otherwise match the other party’s entrenched business practices. This can be advantageous from a negotiating standpoint, as losing out on some issues can favorably influence the advancement of others. The fact that some issues are perceived as entirely separate from the renewal process can also be advantageous. Author rights, for example, are often handled through individual author contracts or separate institutional open access policy agreements. While this can sometimes prevent their inclusion subscription agreements, by recognizing the separation itself the negotiation lends a stage to raise important issues more boldly without directly jeopardizing the terms of renewal.

New ideas I’d like to see in renewal negotiation discussions involve taking what is often the licensee’s obligation and making it a mutual or licensor obligation. One example is caps on changed and added content. Publishers often allow a clause that addresses when a percentage of content lost by a publisher can trigger breach or renegotiation. But aside from title cancellation and swap clauses – which are rare and require a significant amount of time and effort by the library to invoke — there is nothing to prevent a publisher from acquiring and adding content to a package for which the libraries are required to take on in their renewal spend. Another has to do with advance renewal or offer deadlines. As outlined in my previous post, publishers often require advance notice of cancellation, but there is nothing that requires publishers to provide the library with advance notice of major changes that might influence a cancellation decision, like new package offerings or an entirely new license contract. I’d also like to explore clauses that might address the myriad ways payment for published research is replicated across the institution (aka double-dipping), such as with the libraries paid subscription and the author’s open access article processing charges.

Closing the deal
In any change, the individual and organizational commitment to cooperation can be the hardest, but most important first step. In future posts, I’ll lay out ways organizational structures, workflows and individual skills might lead to more frequent and improved collaborative work on these issues.

Breaking the big deal of a major subscription renewal and reinvesting in open access will certainly require a deeper investigation into economics of open access and subscription infrastructure already well-covered by the literature. Perhaps, as with licensing, if we look at these economics more carefully with a different group of eyes and minds, new practical alternatives will emerge.

Information wants to be free – but Viacom is holding it hostage

Last night during dinner I went to watch Tuesday’s Daily Show online, as I frequently do, only to be confronted with a bizarre pop-up ad about DirecTV (which seemed to have nothing to do with me, since I don’t have DirecTV, or, indeed, a TV at all) and a message saying that full episodes were not currently available online. I did a couple of Google searches trying to find out what was going on, but my roommate said, “It’s just a contract dispute – they’ll work it out in a couple of days. Let’s watch something on Netflix instead.”

Turns out this contract dispute – over how much DirecTV pays for Viacom content – has been dragging on for a while. Viacom evidently thought it might come to this, registering its Facebook propaganda page “WhenDirectvDrops” on June 15, weeks before the July 10 deadline. According to the Washington Post, Viacom wants DirecTV to pay 30% more for Viacom channels; DirecTV has refused; both sides are spinning the story – Viacom blaming DirecTV for “dropping” content, Direct TV claiming they are “protecting consumers” – hoping viewers will forget they are caught in a dispute between profitable corporate giants. While Viacom posted DirecTV’s customer service number on its Facebook page and in its ads, encouraging viewers to call and complain, DirecTV was telling its customers where they could watch the full episodes of popular shows like The Daily Show for free online – and Viacom responded by blocking the full episodes.

Why should you care? Because this is what can happen when information, software, and services are controlled by companies primarily interested in profit. Many libraries (including my own) saw something similar this week when Meebo, acquired last month by Google, reached its own drop-dead date yesterday. And don’t forget those big price increases for databases and e-journals – when one of our products changed publishers and increased in price by 100% we had no choice but to can it. It goes away if you don’t pay.

Hopefully my roommate is right – that these two megagiant corporations will “work it out in a couple of days” – because, with no real rights to content which is protected by laws that favor intellectual property owners over viewers, users, and readers, that is our only option. I’m not trying to argue that we have a right to watch Jersey Shore online for free, or ought to. (Tweeter Courtney Mattison told the Associated Press the dispute was “costing her a couple hours of reality TV per night” – and you could argue she is better off.) But Viacom could decide to keep free full episodes offline and force consumers without subscription cable to turn to paid online viewing services, other media providers could follow suit, and then we are that much closer to an information environment where the only way any content is available is through a pay-per-view license negotiated between the company and the end user because we have created the legal and technological structures that make this feasible, profitable, and, even, acceptable.

I recently discovered the beauty of the Kindle for iPad app – I can download a book right to my iPad and start reading it right then! no waiting! But, of course, the Kindle license agreement (which Amazon can change, but I can’t) allows Amazon the ability to pull back the content at any time – content that I am paying for but not purchasing. Now, I’m not likely to want to refer back to my copy of New Moon (Book 2 of the Twilight Saga) and might never miss it, but if the book was a textbook, and the giant textbook publisher got in a dispute with Amazon, and Amazon decided to hold all the books hostage until it got enough readers to call and complain…

This is old ground, of course. Is paying a little bit for access to electronic information for an unspecified amount of time good enough? Most of the time, it probably is, it might even be fair, and most people, including me, might be perfectly willing to do it. But the problem is that this model gives me no real rights to the information. It’s as if I had no stake in it, which, while that may be true for online streaming of Jersey Shore, is less true for my copy of the Best American Mystery Stories of 2011 and is definitely NOT true for the last album I “bought” on iTunes.

You might say, well, then, buy print if you want those rights. Buy CDs. Or check the DVD out of the library. But the reality is that physical media is not only often less attractive to users (I like reading books on my iPad, I’ve discovered), it’s also becoming less available (how many of you live in college towns without a bookstore?), and it’s only a matter of time before it’s not available at all. Libraries are ditching print for online, too. Universities are adopting electronic textbooks. And without any revisions to copyright law that protect the interests of information consumers, libraries and end users are both at the mercy of the publishers’ willingness to negotiate and/or keep the promises they make to never do what they reserve the right to do.

We operate on good faith with our vendors (“it’s a trust relationship,” a rep from Innovative once told me). But at ALA last month I heard Cody Hanson talking about the process of choosing a commercial discovery service for the University of Minnesota Libraries. He wasn’t able to disclose yet what that discovery service was, but he told the audience that these products are “as different as they are similar,” and what makes them so different are not just their features, but the business models and “nature” of their vendors. I don’t know exactly what he meant by that, but as I look at my library’s portfolio of e-products, where, by the end of this month, two-thirds of our subscription databases will come from just one vendor, I sure hope I can trust in that vendor’s good nature. Because there’s precious few other providers we can direct our patrons to, and I don’t really think that making a Facebook page and giving them an 800 number is going to be enough.

Georgia State E-reserves Case Roundup

Last Friday the Judge finally handed down a decision in the Georgia State University e-reserves case, a year after the trial and three years after the suit was brought by academic publishers SAGE, Cambridge University Press, and Oxford University Press. These publishers sued GSU for allowing faculty to upload course readings excerpted from books to the university’s course management system, alleging that the university had gone beyond the accepted guidelines for fair use.

It’s only Monday morning but there’s already been loads of commentary on the decision, a PDF of which was posted online late Friday by Nancy Sims, Copyright Program Librarian at the University of Minnesota. It seems that on balance the decision favors GSU and libraries: copyright violation was found in only 5 of the 99 instances of uploading course readings. I’m sure there will be more coming on this case, as neither GSU nor the plaintiffs have released comments on the decision. But here are some great articles to get you started considering this case and its potential effects on academic libraries:

Three Cheers and Two Questions for the DPLA

Robert Darnton gave a talk at my institution last week about the Digital Public Library of America (DPLA). He presented a progress report, the details of which he has outlined in the New York Review of Books. The first prototype of the DPLA, using technology developed in the project’s “Beta Sprint” competition, should be released in April 2013.

Darnton’s inspiration is familiar to most academic librarians: publisher greed has turned the public good of knowledge into a private commodity. Rising subscription prices have created an enclosure movement whereby the knowledge commons has become a gated community. The DPLA is envisioned as a “mega-meta-macro library” that would harness the technology of the internet to disseminate and preserve the world’s information for all, and for the ages.

I was encouraged and inspired by Darnton’s talk. As the project moves forward, I have two questions, both relating to possible unintended effects of the DPLA on long-term preservation of library materials.

Darnton described how the DPLA would employ a “moving wall” model of access to collections. Much like JSTOR’s archives of journal articles, the DPLA’s holdings would ideally lag three to five years behind currently released material (once some very thorny copyright issues have been untangled). Local institutions – public and academic libraries – would complement the DPLA by continuing to provide access to newly published books. The DPLA’s “opening day” collection would aggregate existing digital projects, such as the Hathi Trust and Internet Archive, enhanced by unique digital collections from rare book and special collections libraries.

My first question is: to what extent would this moving wall disincentivize academic and public libraries to maintain and preserve their own print collections, once the DPLA’s materials are available? My institution, like many, has deaccessioned back runs of JSTOR journals. With pressure on our libraries to reappropriate shelf space, will we see the same trend with book collections? Will public libraries lose support from their communities if “everything” indeed becomes available on the internet?

Second – and I must credit one of our library’s interns for this question – since the DPLA will aggregate many different digital collections, how confident are we that digitization standards will be consistent? Darnton admitted after the lecture that provided certain baseline standards are met, the project may have little control over quality. Individual institutions do such a nice job in digitizing their own materials, he suggested, that they could be models for the rest of the project. But given the amount of material targeted for inclusion, and the unlikelihood of reprocessing millions of pages of material already digitized, we can probably expect a wide variation in standards. How important is this, to us and to users?

Before the lecture, I joked to a friend that we were about to watch an episode of “Darnton Abbey.” Librarians in Darnton Abbey will be both upstairs and downstairs – we should labor to support the project, but we, like all users, will also greatly benefit. In the face of trends that threaten to enclose information in an estate of privilege, the DPLA aims to democratize knowledge for all.

The Bearer of Bad News

One of the college service projects I’m working on involves the creation of a new digital platform for teaching and learning at my college. As faculty have begun to use the platform for their courses this semester, I’m finding that there’s been an uptick in the number of questions I field about posting course readings online. We don’t have an ereserve system at my library, and while I take any opportunity I can get to promote direct linking into our article databases, inevitably there are readings that faculty need to assign to their students that aren’t available in the databases.

It’s so interesting to see the range of awareness about copyright issues among my faculty colleagues. When they ask me whether then can post scanned book chapters or articles on their password-protected course sites, I respond by mentioning the Georgia State copyright case and urging caution. Many (most?) of the faculty I’ve spoken with aren’t aware of the case, perhaps because, like so many other aspects of the scholarly communications system, it seems like a library problem?

I like talking with faculty about copyright alternatives: about open access publishing, public domain materials, creative commons licenses, and how openness benefits researchers and the public — I could go on for hours. And I sympathize with faculty who struggle to get course materials to their students in the most efficient way possible. But I don’t like it when there are no acceptable alternatives. That’s tough to talk about, and I hate the hollow awkwardness that comes with telling colleagues that it’s not advisable to do something that is already such an accepted practice in faculty culture.

The Georgia State trial has ended. Once the verdict is announced, whatever the decision, we’ll have another opportunity for conversations about copyright alternatives with faculty. How can we promote awareness across the academy and emphasize that copyright isn’t just a library issue?