I think it's fair to say that what characterizes electronic resource management the most is licensing. For if something is licensed, then it's most likely e-content or related, and by definition, it's not owned by a library, and thus it's a temporary item in the collection, and thus requires special management.
Licensing requires understanding other aspects of electronic resource management, too. While an ERM librarian's job duties might be solely focused on the technical aspects of the work, i.e., those things we covered in prior sections, an ERM librarian whose primary job duty is to participate in the licensing process must have a good grasp of the technical for no reason other than that it is the technical that is licensed. In other words, it's probably a good thing to understand what is being licensed. Thus, this is an area of ERM librarianship that might take time to work up to.
Before we get to that, though, we should refresh ourselves on the basics of copyright law, since what is being licensed is a fact of its existence. We should also know something about contract law, and how the two types of laws are related, since licensing entails negotiating, signing, and managing contracts.
Copyright and Contracts
There is a complicated tension between copyright law and contract law. In short, copyright is a temporary right because of its close connection to the concept of the public domain. In the US, copyright was established in the Constitution under Article 1, Section 8, Clause 8, which states:
[The Congress shall have Power ...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
My reading of this has been, and note, this is my reading and not necessarily legal dogma, that respective Writings and Discoveries belong to the public; as such, this clause was articulated in the Constitution to carve out some protection space for the authors or inventors from the public, for a limited time, in order to promote the Progress of Science and useful Arts. But in the end, it is the public that is served and that ultimately owns these creations.
The clause gives copyright owners a right, and as a right, it takes preemptive status over other laws that are less universal, laws that are in personam (Rub, 2017). On the other hand, what creates tension is that it is a kind of right that can be transferred or sold by way of a contract; that is, it is in personam. Under this view, copyrighted work is property (Rub, 2017), and as property, it can be traded for goods and services.
in personam: made against or affecting a specific person only; imposing a personal liability (Google Dictionary).
In short, copyright exists in a unique space where it functions as a basic right, embedded in the earliest part of the US Constitution; it exists as a temporary bulwark against public ownership for the public good; and unlike other, basic rights, copyright is transferable, much like property is transferable.
This all gets more complicated when licensing enters the picture, and this largely has to do with three things. First, the history of software reflects the history of print, in as much as source code relied on a physical medium, like a floppy disk or magnetic tape, to be distributed, just as a book had to be printed to be distributed. Second, the internet and greater availability of higher bandwidth speeds enabled, like books, software to be distributed as easily as any other digital object. Third, it wasn't originally clear that software, or source code in particular, was copyrightable, but the Copyright Office at the Library of Congress eventually decided that it was eligible. This elibility became codified in an 1980 amendment to the 1976 Copyright Act. This cemented the ability for software copyright owners to lease their source code, especially once that code was free of a physical expression, and thereby evade the First Sale Doctrine, to users without transferring ownership of the expression to users.
- Fifty-Five Years of Software Copyright
- Computer Software Copyright Act of 1980
- Copyright Timeline: A History of Copyright in the United States
- The Computer Software Copyright Act of 1980
Licensing agreements offer copyright or intellectual property (patents, trademarks) owners a contractual framework. This framework functions as an agreement among two or more parties. It enables the parties involved to participate, within some range of time (all contracts must have start and end dates), in an owner's intellectual property under certain conditions. Librarians enter into licensing agreements of all sorts. Licences cover bibliographic databases, ILS/ERM software, and of course, e-content.
Entering a licensing agreement for e-content means that libraries do not own that content but only have access for a limited period of time, as defined in the contract. This is unlike print works, which fall under the first-sale doctrine. The existence of a licensing agreement between a library and an intellectual property owner thus entails lack of ownership of the item (think of item as defined by the Functional Requirements for Bibliographic Records FRBR model).
Weir (2016) provides a nice outline of licenses and what they include. According to Weir, there are two general types of licensing agreements:
- End user agreements: these are generally the kind that people accept when they use some kind of software or some service.
- Site agreements: these are the agreements librarians get involved in when they negotiate for things like databases. Here, site refers to the organizational entity.
Licenses must include a variety of components. Weir (2016) outlines the parts of a standard license. They include:
- Introductions: this includes information about the licensee and the licensor, date information, some information about payments and the schedule.
- Definitions: this section defines the major terms of the contract. Weir includes, as examples, the licensee, the licensor, authorized user, user population, and whether the contract entails a single or multi-user site.
- Access: This covers topics such as IP authentication and proxy access.
- Acceptable use: Included here are issues related to downloading, storage, print rights, interlibrary loan (ILL), and preservation.
- Prohibited use: What people cannot do: download restrictions, etc.
- Responsibilities: What the licensee's (the library) responsibilities are. Be careful about accepting responsibility for actions that the library would have a difficult time monitoring. Then also, what are the licensor's responsibilities. This might include topics such as 24 hour access.
- Term and terminations: Details about the terms of the contract and how the contract may be terminated. Be aware that many libraries are attached to either municipal, county, or state governments and must adhere to relevant laws.
- Various provisions
As an example, the California Digital Library, via the University of California, provides a checklist and a copy of their standard license agreement.
The checklist covers four main sections, additional subsections, and is well worth a read:
- Content and Access
Like the various technologies that we have covered, NISO and its members moved toward forming a document that helps create a common license framework. The result was SERU: A Shared Electronic Resource Understanding. Although all licenses share some basic similarities, as discussed in Weir (2016) above, the details of the hundreds of licenses a large library has to handle can get lost in a sea of variability.
SERU is a NISO recommended practice helps to resolve this. It fosters a common approach to some aspects of the licensing process and in fact can be used as "an alternative to a license agreement" if a provider and a library agrees to use it. Like the standard licensing structure that Weir (2016) outlines, SERU includes parts that describe use, inappropriate use, access, and more but also posits other stipulations, such as confidentiality and privacy.
NASIG Core Competencies
We have addressed the NASIG Core Competencies for Electronic Resources Librarians (NCC) in earlier sections. The NCC is a reminder of the centrality of licensing for the ERM librarian. Section 1.2 states:
Thorough knowledge of electronic resource licensing and the legal framework in which it takes place. Since licenses govern the use of most library electronic resources and have conditions that cannot knowingly be violated, an ERL with responsibilities related to licensing must demonstrate familiarity with how and for whom an organization licenses content, as well as the concepts, implications, and contract language pertaining to such issues as archival rights, perpetual access and interlibrary loan. A practical working understanding of issues such as copyright and fair use will allow ERLs to obtain the least restrictive, most library-friendly licensing terms during publisher/vendor license negotiations.
Even though I have covered NCC in earlier sections, it's a reminder that when we talk about electronic resource management, we talk about a comprehensive list of responsibilities, skills, technologies, and more, and that we should keep this on our radar. Second, the Regan (2015) specifically mentions these competencies with respect to the importance of learning more about the licensing process.
I think it's still true, seven years after publication and as Regan (2015) states, that few library schools cover licensing and license negotiations and more broadly, electronic resource management, but I think that's changing. Even if it's covered, like here, Regan's advice is still important and the essential questions they ask are relevant even if you have extensive experience with the process.
What is also relevant is the additional theme that Regan (2015) covers about the importance of advocating. Many people are nervous about the idea of having to negotiate a license for an e-product, but in reality, such work is not done outside of a team. And that team will likely include people who work outside of libraries. This makes it important to advocate for the library and the licensing process.
LIBLICENSE is a resource to assist librarians in crafting, adopting, and managing licenses for electronic resources. The project is aimed at university libraries, but is relevant to other library types, too. The model licenses page provides a link to the main template, but also links to additional model licenses that cover the United States, the United Kingdom, and Canada from various institutional perspectives, including consortial licensing.
The LIBLICENSE model license includes helpful details, such as types of authorized uses and provisions on:
- course reserves
- course packs
- electronic links
- scholarly sharing
- scholarly citation
- text and data mining
It's important to note that anything that is covered in a license is subject to negotiation between the library and the vendor. That does not meant that terms will be accepted between the parties, but if something is unfavorable or not in the best interests of your institution and patrons, then that needs to be discussed by all parties.
These model licenses are invaluable not only from a practicing perspective but also from an educational perspective. The more you review, the more comfortable you will become working with them. And, as we will learn in the next section, one of the most important parts of the negotiating process is being prepared to negotiate. That entails being familiar with the basic license model.
Readings / References
North American Serials Interest Group. (2013). NASIG core competencies for electronic resources librarians. https://nasig.org/Competencies-Eresources
Regan, S. (2015). Lassoing the Licensing Beast: How Electronic Resources Librarians Can Build Competency and Advocate for Wrangling Electronic Content Licensing. The Serials Librarian, 68(1–4), 318–324. https://doi.org/10.1080/0361526X.2015.1026225
SERU: A Shared Electronic Resource Understanding, NISO, http://www.niso.org/publications/rp/RP-7-2012_SERU.pdf
Rub, G. A. (2017). Copyright survives: Rethinking the copyright-contract conflict (SSRN Scholarly Paper No. 2926253). https://papers.ssrn.com/abstract=2926253
Weir, R. O. (2012). Licensing Electronic Resources and Contract Negotiation. In R. O. Weir (Ed.), Managing electronic resources: a LITA guide. Chicago: ALA TechSource, an imprint of the American Library Association.