Trends in Licensing Models NINCH Copyright Town Meeting March 23, 2002 ARLIS-NA/VRA

Trends in Licensing Models

NINCH Copyright Town Meeting

March 23, 2002

ARLIS-NA/VRA

Mary M. Case, Association of Research Libraries

Reader’s License Agreement

“You may read the Article only for private, noncommercial use. You may not read the Article aloud or as part of a dramatic monologue. You may not read it to provide, or as a part of, any commercial product or service. You may not use it in a PowerPoint presentation for any purpose - ever.”


Reader’s License Agreement

“Your license to read the article expires 30 days after acceptance of the Reader License Agreement, as indicated by tearing the perforated seal, after which the printed ink may fade in such a way that the words may cease to be legible. In this case, purchasing another license will be your sole remedy.”

Jeff Howe, “Licensed to Bill,” Wired, Oct. 2001, p. 141.


Trends in Licensing

• Why Licenses

• Characteristics of a License

• Evolution of Licensing

• Issues

• Progress

• The Future

• Implications for the Information Commons


Why Licenses?

• Removes the ambiguity– 1976 Copyright Act insufficient– Failure of CONFU– Outcomes of the DMCA still unsettled

• TPM’s not yet pervasive

• Easier to litigate

• Common in the software industry


Characteristics of a License

• Drafted to protect the interests of the rights owner

• Can be used to manage a complex array of rights

• Does not transfer ownership of any property

• May or may not be negotiable

• Can meet the needs of the licensing parties

• But what about the public good?


Evolution of Licenses

• Rapid increase in electronic products– Dial-up A&I Services– CD-ROM’s– Tape-loads– Internet access to remote files

• Market pushback: negotiations, principles, models, consortia

• Community development of products and license terms


Issues

• Users

• Uses

• Liability

• Impermanence


Users

• Defined as members of a community

• Can be restricted by institution or geography or both

• May allow limited onsite use by “the public”, but not remote access

• May prohibit any sharing of content outside the authorized user base


Uses

• Limits uses to what can be negotiated rather than policy embedded in copyright law

• Educational, personal, non-commercial uses

• May attempt to restrict or quantify fair use

• May prohibit ILL

• May prohibit a user from sharing an article/image with an unauthorized user


Liability

• Institution could be liable for the behavior of users

• Perceived misuse could result in immediate termination of the license

• Need for cure period

• Need for institutional policies and procedures for investigating misuse


Impermanence

• Licenses are time-bound

• No local copy

• May lose all access at end of license term

• Individual users may be required to destroy any copies made

• If permanent access negotiated, no guarantee that files will be maintained in perpetuity

• Aggregators may lose rights to primary content


Progress

• Better balanced licenses are being written

• Fair use and broader rights are being granted

• Licensees have incorporated performance expectations for licensors

• Community principles and model licenses have been developed

• New products and services are possible


The Future

• Uniform Computer Information Transactions Act (UCITA)– Legalize click-on & shrink-wrap licenses– Could eliminate fair use– Could undermine licensees’ ability to negotiate

• Technological Protection Measures (TPMs)– Could enforce or pre-empt licenses– Could enable or restrict use


The Future

• Licenses a tool for copyright holders to ensure public access– non-exclusive agreements– deposits to public archives, conservancies


Implications

• Much licensed content will never make it to the public domain– Library does not own copy - has no rights to

archive and preserve– Without “public” copies, content can be

withdrawn at any time– With copyright term so long, some content

owners will be unable or unwilling to maintain their works as economic value declines


Implications

• TPM’s – Will they have “term-release” when copyright

expires?– Will they be migrated and maintained or

become obsolete and indecipherable?


Broken Digital Promise

“…a limited-distribution model of publication may undermine a constitutional intent, namely that rights be granted to authors for a limited time in exchange for assurance that materials will pass eventually into the public domain and the public record.”

Digital Dilemma, p. 204.

Documents

Trends in Licensing Models NINCH Copyright Town Meeting March 23, 2002 ARLIS-NA/VRA