66th IFLA Council and General
Jerusalem, Israel, 13-18 August
Code Number: 041-126-E
Division Number: III
Professional Group: Public Libraries
Joint Meeting with: -
Meeting Number: 126
Simultaneous Interpretation: No
Licensing and public libraries
CECUP / EBLIDA
Way of purchasing material to libraries is changing. Electronic web documents cannot be owned by libraries as books or cassettes. Instead of buying ownership, libraries will in many cases buy access to web and other electronic documents. Then, provisions of use of the document must be agreed in a licensing agreement. Librarians must more than earlier learn to read contracts and the contract law.
The general way to acquire chargeable web material for libraries is to form consortia of libraries. Thus, libraries must learn to make consortia agreements. It must also be decided, who and in which amounts is paying the license fees.
Licenses are one reason to say, that libraries need more money to fulfil their tasks in the information society.
Licensing is the way to acquire library material in future. Concerning web documents, partly also CD-roms and other electronic resources in physical form, we buy in future access to information, no more ownership of physical objectives. Professional skills in acquisition as well as the whole acquisition policy must be developed in accordance with this fact.
The copyright legislation has a relation to licensing:
The copyright law gives the limits in which there is no need for permitted use, licensing agreements and/or fees. This varies from country to country, but concern usually copying for private purposes, safety copying in libraries and archives, copying for visually impaired or other handicapped etc. Still, licensing agreements will be the major way to acquire electronic documents to libraries. As well as we now order and pay for books, we have to agree about provisions of use for electronic material.
As long as the situation remains like now: the most of chargeable web material is offered by international producers, a typical negotiation situation between the licensor = the publisher and the licensee = the library can be described in the following way:
As one can see, the parties are not equal. This is a problem. To protect the weaker party in negotiations, the European association of library associations, EBLIDA, has demanded that a clause must be added into the copyright directive under work in the European Union, to deny contracts in which any contract partner would be put in weaker position than what is granted in the copyright law. In the IFLA CLM group some suggestions have been made, to demand the contracts in the language of the concerned country. Still, lawyers seem to have too many sources of confusion in situations where two versions of contracts in different languages would be needed.
- texts mainly in English (lawyer jargon), in many pages
- draft texts made by the licensor
- the representative of the licensor is working with the licenses daily, maybe a lawyer by profession
But there are always two parties in the negotiation situation - both parties can basically make changes to the draft agreement! In reality, libraries (or library consortia) must find each others internationally to get their own formulation included into the contract texts.
A license agreement
Things to be agreed in a licence agreement are e.g.:
Licensing agreements are done under the contract law. Thus, librarians must get acquainted with their national contract law. To be able to tell the provisions of use to users every librarian must know at least the basic things of licensing.
- Choice of law
vThe Rights granted under the Licence
- Usage Restrictions
- Term and Termination
- Delivery and Access to the Licensed Materials
- Licence Fee
- Licensee's (Library) Undertakings
- Implementation and Evaluation
- Warranties, Undertakings, Indemnities
Many libraries have wondered about the so-called shrink-wrap licenses: you get a CD-rom or alike in a plastic cover which says that by breaking the cover you bound yourself to a licensing contract. This is legal in some countries, e.g. in the United States, but not everywhere. Therefore, an important detail to be checked from the national contract law is, if it is recognising a contract without signature. If not, you can forget the shrink-wrap license.
Material to be licensed
In most countries licensing agreements have since now been made by or for research libraries. The reason is simple: except the English-speaking countries, not too much interesting material for public library users has been available. For a real break-down in public libraries, the material should be in the national language and of general interest. General interest often means also commercial potential. Here I can see a possible problem for public libraries: will commercial providers offer their material via public libraries? What if they deny the library use of their web resources?
In the last two years, the first agreements including public libraries have been made. As far as I know, most of them cover more or less material in English language, but of general interest. The national commercial production of web resources is at least now developing slowly. But the situation can change very quickly, and libraries should be aware of that.
Licensing fees are one of the concrete answers to the question why libraries would be more expensive in the information society than before? The web resources will be parallel material to all other and existing material. Only small parts of e.g. paper material can be replaced by documents found on Internet.
Shared licensing, licensing consortia
[this part is based on Emanuella Giavarras' material - thank for that]
Fortunately, libraries have also developed new strategies to survive with the challenges of licensing. They can network in one form or another.
An important thing is, who is paying for the licensing agreement. The financing source can be the libraries themselves like in Germany, Netherlands, and the UK. In the Nordic countries the government is granting this material to libraries - maybe not for ever, but at least to begin.
The main strategy to join forces is to create licensing consortia. They can be country-wide, state-wide, region-wide, local, among a certain type of libraries (e.g. research libraries) or on some other basis. The main point is that libraries join together to share the burden of the work and/or the licensing costs. In many cases the consortia have adopted some kind of political viewpoint, too, expressing the common opinions of the concerned libraries.
The general definition of a consortium: A temporary co-operation of several powers or large interests to effect some common purpose.
The management of a consortium can be run by:
- a member of the consortium
- a new legal entity founded by the partners
- an outside agent (maybe commercial, a subscription agent or alike)
A consortium agreement must define at least:
- who are the partners
- what is the purpose of the consortium
- which material will be acquired (e.g. only electronic or electronic and paper material)
- administered by a legal entity or via an agreement between the partners
- share of costs
- how the consortium is run in practice, responsibilities
- what happens in unexpected situations or in problems (one partner wants to leave, the whole consortia comes to an end)
Internet offers a lot of licensing information on both principal and practical level - some links below.
There are two important general information resources, which are good starting points to get further:
Liblicense, based in the United States:
ECUP+, based in Europe:
European statements and documents: