Standardized License Expression Clarity Control and Fair Use

Standardized License Expression: Clarity, Control and Fair Use CNI April 2006 Sharon Farb, UCLA Daviess Menefee. Elseiver Inc. Christopher Mc. Kenzie , 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

l What is a License Agreement? l A License Agreement is a Legal Contract l A verbal contract isn’t worth the paper it’s printed on l Samuel Goldwyn, Hollywood Movie Producer CNI April 2006

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 l By 1999 libraries were building Electronic Resource Management Systems (ERMS) in-house. l Development of a “best practices” guide sponsored by DLF, published 2004. l Vendors providing ERM systems. . l We can now do useful things with license and contract terms! l DLF ERMI License elements serve as de facto standards. CNI April 2006

License or Acquisition or Contract? l Administrative metadata l l Who are the parties? When does the license expire? Who is the local contact? Obligations of the Parties l l l Warranties and indemnifications Breach remedies Conditions of termination Notice Requirements Terms of use l l l Authorized users Printing, downloading ILL Reserves, coursepacks… Other use restrictions l Business terms l l CNI April 2006 Authorized sites Concurrent users Price, cancellation restrictions, price caps Archival rights

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 § § Systematic action and calculation § § “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. ” “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? l l Rights Expression Languages also deal with permissions and prohibitions. Can we use or adapt them? RELs designed for Digital Rights Management. l l 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)] l “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 Taiwan By 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 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. CNI April 2006