Licenses: maximizing their benefits for authors, libraries, and publishers

1. Licenses: maximizing their benefits for authors, libraries, and publishers Symposium on Electronic Scientific, Technical and Medical Journal Publishing and Its Implications The National Academies, May 19-20, 2003 Ann Okerson, Yale University Library Ann.okerson@yale.edu

2. Copyright & licenses, 1 • Copyright is a long-established regime that we have used to govern print information (1790) • Currently we are governed by the 1976 Act (amended by DMCA in October 1998) • Copyright law describes owners’ rights • Also describes non-owners’, i.e., users’, rights, for: • Copying, distribution, library lending • And much more • Mostly we think of “copyright” as a “good” word

3. Copyright & licenses, 2 • Both rest upon the concept of IP, but copyright • Is always the “law of the land” • Is always high in concept and low in specifics • Hard to change (consensual and legislative process) • Whereas licenses (or contracts) • Grant rights of use to that which one doesn’t own • Are negotiable business-to-business agreements • Are specific, tailored (specificity can be reassuring) • Can restrict, or clarify, or expand rights that would be granted under copyright law (i.e., licenses are in theory “neutral,” controlled by parties to them)

4. Licenses, why? (1) • Licenses (rather than copyright) are mostly being used for electronic information, because: • The e-distribution environment is new • Information can be distributed widely and easily • Current copyright law does not fully addresses copyright owners’ concerns (including adding value to non-copyrighted materials) • Copyright law seems to be in a state of flux • Copyright law cannot address all details of complicated electronic information arrangements

5. Licenses, why? (2) • Because: • They clarify and disambiguate numerous matters where practices are unclear • They encourage dialog, which leads to convergence • Licenses may be able more easily to cross national boundaries • Enable us to move ahead instead of being stuck, i.e., waiting for copyright law to help us • Even so, by a number of librarians and scholars, “licensing” is regarded as a “bad” word

6. How do licenses work? • Licenses are governed by state law, harmonized through NCCUSL • They can be crafted for benefit of all parties • Licenses used to be regarded as entirely “controlled” by publishers, but those days are going away • Authors: can license their works to publishers rather than transfer copyright – which offers the authors more control (though few authors choose to do this) • Libraries: working with publishers in a license environment, have made an e-market possible – where otherwise we might have been stuck

7. The license you agree to … Robert Mankoff, in the New Yorker, ID: 16737

8. “Hot” licensing issues, libraries & consumers • Libraries: • Not all licenses have been fair or negotiable • Some problem areas have been resolved; others persist (trickiest: interlibrary loan, perpetual access) • Licensing requires time and expertise, thus privileging institutions with staff resources • Consumers: • “Shrinkwrap” or “click” licenses can seriously disadvantage purchasers • Individual purchasers have almost no leverage at all • UCITA legislation would exacerbate these problems

9. “Hot” licensing issues, UCITA • UCITA – Uniform Computer Information Transaction Act from NCCUSL • A proposed state law that seeks to create unified approach to licensing of software and information • Can validate shrinkwrap or click contracts • Complex, hard to understand • Appears biased against consumers and libraries • Controversial – passed by only 2 states so far and hotly opposed by various library, business and consumer groups • ABA has now withdrawn support from UCITA

10. “Hot” licensing issues, scientists • Scholars/Authors: • Many scientists want their articles to be widely available, but here’s the quandary: • In order to efficiently conduct their business, publishers have asked scientists for copyright transfer • Scientists are accustomed to making such transfers • These days, scientists might like also to distribute their articles on their own sites, institutional sites, and e-print sites, as well as in peer-reviewed journals • Some publishers permit this even though copyright has been transferred to them; but others do not

11. “Hot” licensing issues, scientists • Getting out of the quandary: • Good: sign a copyright transfer that permits author to distribute own work (society example) • Keeps author out of copyright management stuff • Better? retain copyright while licensing publisher to deploy the work in ways that are needed for effective publication and dissemination (generic example, big publisher example) • Author responsible for managing his/her rights but has wide flexibility, as owner of the work)

12. Example: APS copyright transfer Author rights at: < http://forms.aps.org/author/copytrnsfr.pdf> • (1) All proprietary rights other than copyright • (2) The nonexclusive right, after publication by APS, to give permission to third parties to republish print versions of the Article or a translation, or excerpts, without obtaining permission from APS… • (3) The right, after publication by APS, to use all or part of the Article without revision or modification, including the APS- formatted version, in print compilations or other print publications of the author(s)' own works, and on the author(s)' web home page, and to make copies of … the Article for the author(s)’ use for lecture or classroom purposes • (4) The right to post and update the Article on e-print servers as long as files prepared and/or formatted by APS or its vendors are not used for that purpose. Any such posting made or updated after acceptance of the Article for publication shall include a link to the online abstract in the APS journal or to the entry page of the journal • (5) If the Article was prepared under a U.S. Government contract, the government shall have the rights under the copyright to the extent required by the contract.

13. Example: license to publisher Liblicense: <http://www.library.yale.edu/~llicense/authors-licenses.shtml> • The Author grants to the Publisher the right to publish the article in all editions and versions of the Title above. This grant shall endure for the duration of copyright and apply to editions and versions published in any and all languages throughout the world. • Additionally, the Publisher shall include a notice in the Work saying, "© _(name)_. Readers of this article may copy it without the copyright owner's permission, if the author and Publisher are acknowledged in the copy and the copy is used for educational, not-for-profit purposes." • Warranty of Authorship: The Author warrants to the Publisher that she is its sole author and that she has full power to make this Agreement.

14. Example: license to publisher, 2 A Commercial Publisher’s language: Author hereby grants to the Publisher the following non-exclusive world licence to:  • 1. Publish the accepted article.Author grants to the Publisher the right to publish the article in all media, including print, electronic and microfilm… • 2. Reproduce and authorize reproduction in whole or in part by others, including reprints and photocopies. • 3. Permit document delivery services and A&I services to include the article in whole or in part in their services.  • 4. Publisher recognizes the retention by the Author of copyright, patent and trademark rights or rights to any process or procedure described in the article. • 5. The rights and licence granted herein to the Publisher shall be for the full term of copyright.  • 6. Publisher shall ensure that the article will be published and distributed with the appropriate copyright notice in the name of the Author.

15. Example: license to publisher, 3 Creative Commons: <http://www.creativecommons.org> • Attribution. You let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give you credit. • Noncommercial. You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only. • No Derivative Works. You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. • Share Alike. You allow others to distribute derivative works only under a license identical to the license that governs your work.

16. Some useful readings • The LIBLICENSE web site (all you ever wanted to know about licensing), at: <www.library.yale.edu/~llicense/> • Scientists: see particularly the “Authors’ Licenses” section at: <http://www.library.yale.edu/~llicense/authors-licenses.shtml> • Libraries: see particularly the DLF Model License at: <http://www.library.yale.edu/~llicense/modlic.shtml> • Creative Commons: www.creativecommons.org • Project RoMEO (rights issues surrounding self-archiving): <http://www.lboro.ac.uk/departments/ls/disresearch/romeo/> • The Digital Dilemma; intellectual property in the information age. Washington, DC, National Academy Press, 2000. Also available for free: <http://books.nap.edu/catalog/9601.html> 

17. Alex Gregory, in the New Yorker, 3/27/2000