UK model licence working group


Subject: UK model licence working group
From: Sally Morris (smorris@wiley.co.uk)
Date: ti 26 touko  1998 - 14:22:57 EEST


I can report on the latest stage of work from the UK joint working group,
which consists of members from both the university and publishing
communities. We originally produced a rather long, complex and legalistic
document which included a comprehensive list of definitions and a large
number of alternative clauses for different options. We have recently
reconvened and are now trying to produce a 'toolkit' consisting of three things:

1 - A standardised framework (rather more fleshed out than a simple 'heads
of agreement') which might be adopted, both by those using wording from the
original 'model licence' and by those writing their own licences.

2 - A number of completed examples of licences for particular, common
situations (such as a library licensing one or more journals from a
publisher, or licensing a networkable CD-rom, or obtaining a licence to
create its own digitised version of a text original). For these we are
boiling down the wording in the original model (which we all agree was too
long, complex and legalistic) to the absolute bare minimum which our legal
colleagues on both sides consider acceptable.

3 - An agreed set of definitions which can be referred to in licences, and
does not therefore need to be included in every licence in its entirety
(though we do envisage a handful of key definitions being present).

We happen to think that the existence of these tools and the knowledge that
they are basically acceptable to both publishers and libraries will mean
that there are far fewer instances where the time and money of both parties
is wasted in unnecessary negotiation about the non-financial terms and
conditions.

We are optimistic about completing this stage of our work by the summer, at
which point I'm sure we'll want to share the outputs as widely as possible
and gather further international feedback.

Sally Morris

I attach the text of a paper I gave recently on the subject, for those who
want more detail:

Copyright and model licences
Sally Morris, Director of Copyright & Licensing, John Wiley & Sons, Ltd.

I am a member of the joint PA/JISC working party on licensing - which came
up with the Draft Model Licence and is now refining that. However, what
follows is my personal view and does not necessarily represent the opinions
of other members of the working party, or indeed of John Wiley.

How do copyright and licences fit together?
It may seem odd to link copyright and licences together - copyright law and
contract law are often seen as opposites. However, I think that in fact
they have to be the two sides of the same coin; if licences say something
different from what copyright says, we are all asking for problems.
Licences need to support and not contradict copyright.

It is probably significant that governments are increasingly expecting
licensing to come up with answers to what have, in the past, been seen as
copyright problems. When a parliamentary question was raised last December
on whether there were plans to amend the Copyright Act in line with Lord
Dearing's recommendations, the answer was interesting - the Minister, Ian
McCartney, replied 'I understand there are discussions between the
Publishers Association and the Joint Information Systems Committee on a
licensing scheme covering digital material and specifically designed to meet
the needs of teachers and researchers. I very much hope that a successful
scheme can be devised." There is a similar emphasis on licensing solutions
in the EU draft directive on harmonisation of copyright.

However, the law isn't always sufficiently explicit, for example in its
references to Fair Dealing and Inter-Library Loan. Even in the print
environment, it has been necessary to supplement the bald statements in the
Copyright Act by drawing up explicit guidelines to help people determine
their day-to-day practice. The PA/JISC working groups on Fair Dealing and
Inter-Library Loan are trying to do exactly that for the digital
environment. What licences need to do, rather than simply referring to
these rather loose terms, which can mean different things to different
people, is to spell out exactly what is meant. In doing that, we all need
to reflect a consensus of agreement about what they do mean in the digital
environment.

Is a single model licence feasible?
I can understand very well why our customers would like a single identical
licence for all the electronic products they buy. It would make
administration of all the licences manageable; it would also reduce the
work-load required to read, understand and evaluate all the long, complex
and different licences they are offered.
However, I think there are good reasons why it is unrealistic to expect that
publishers will be willing, or indeed able, to agree to use a single
standard licence.

Firstly, it is too soon. Publishers (or at least the larger ones, who
have multiple electronic products, and who have specialised staff to draft
licences) are still trying to work out for themselves what the best licence
should actually say. In this context, 'best' does not simply mean the
licence which best protects publishers' and authors' interests - it also
needs to be efficient in practice; if every customer hates it and lengthy
discussions and negotiations ensue every time, this will cost the publisher
time and money.

Secondly, the adoption of a single standard licence would not be legally
acceptable. In Europe, and even more so in the US, there are laws which
heavily restrict the extent to which publishers can confer on such matters.
We have to be very careful to avoid 'anti-competitiveness' whenever talking
together about how we propose to deal with our customers. Even if this
sometimes militates against the creation of a level playing field for all
our customers, it is a fact of life.

Standard licences would, in any case, be difficult to apply across the
board. Publishers are trying to produce licences for a range of products,
with different features. It is difficult enough for one publisher to
develop a single standard licence for all their products, even though this
brings undeniable benefits for the publisher as well as for customers.

Convergence
While it may not be realistic to look at having a single identical licence
in all cases, there is some light at the end of the tunnel. It is
reassuring to consider what has happened in the area of contracts between
authors and publishers. There is no single standard 'author contract'
which all publishers use for printed books. However, if you compare
contracts from different publishers they look surprisingly similar.
There are two main reasons for this. One is that publishers use a small
number of key reference works to guide us in creating contracts ('Publishing
Agreements' by Charles Clark is the 'bible' for UK publishers). The other
is that the Writers' Guild and the Society of Authors have proposed a
'minimum terms agreement'. While publishers do not follow this slavishly,
it undoubtedly has an effect on what authors ask for and what publishers
agree to.

It seems highly probable to me that the same thing will happen with
electronic licences (indeed, I suspect it is already happening). Although
there is no published 'bible' for publishers yet, there are various sets of
guidelines in circulation; the very valuable discussions and documents on
the LibLicense discussion list are also extremely influential in making both
sides aware of the issues (perhaps all the more influential because the
discussion is open to both librarians and publishers). The PA/JISC
working group is developing tools that publishers and universities can use,
which I will describe in more detail below.

However, it is important to note that there are two senses in which licences
might converge or become standardised. One is the structure, the wording
used, the conditions imposed: I think these will almost inevitably
converge. The other is the actual prices charged: standardisation of
actual prices is implausible and quite possibly illegal, although increasing
similarity in the pricing models used is quite likely.

The PA/JISC 'draft model licence'
One of the reasons that the PA/JISC groups have achieved as much as they
have is that they have operated according to 'Chatham House Rules'.
Members have worked in an individual capacity; it is not a negotiation, and
the participants have no formal representative function. We all work as
interested inviduals with something to offer in finding workable solutions
to difficult problems. What is interesting is how often we have found it
unexpectedly easy to reach agreement - we thought we were further apart than
we were!

The licensing group consists of four people nominated by JISC and four
nominated by the Publishers Association: Toby Bainton from SCONUL, Charles
Oppenheim from De Montfort and now Loughborough, Nigel Lodge from CHEST,
Gerd Islei from Templeton College, Oxford; Charles Clark from the PA
(Chair), Peter Sowden from Routledge, Chris Scarles and later Penny Carter
from Cambridge University Press, and myself.

The outcome of the first stage of our work was a substantial document called
the 'Draft Model Licence'. It is important to understand what this is and
what it is not. It contains en extremely exhaustive list of definitions.
It also contains a variety of alternative clauses for different situations
and preferences; not only does it cover both digitisation of print, and use
of electronically delivered works, but it also gives alternatives for many
different approaches. We never expected that anyone would use it in its
entirety - you would need to pare it down to the alternatives which were
actually relevant to your particular licence. What it does offer, though,
is a marvellous source of suitable, and - most important of all - mutually
acceptable, wording for almost every licensing situation.

Next steps
The group has now reconvened to complete our work. We received fairly
extensive feedback , from both librarians and publishers, on the initial
document, which we are accommodating. We are now working on three
different 'working tools' which we hope will be useful:
1. 'Heads of Agreement' - an outline of what licences would say, and also
a framework to help ensure that licences contain all the important elements
in more or less the same order. We are also trying to spell out 'baseline
terms' (other than pricing) - for instance, what a site should include, what
redistribution should be permitted, and what undertakings should be made
about archiving. These baseline terms would potentially apply both to any
'model licences' and, we hope, to other licences which publishers and/or
universities prefer to draw up for themselves.
2. Three or four working model licences for common situations, such as
licensing electronic versions of journals, licensing a networkable CD-rom,
or a licence to digitise existing print materials. We are paring down the
wording to the absolute minimum that is necessary, and trying to simplify
the legal language as much as we can. We have realised that, although
large publishers with specialist staff may prefer to write their own
licences, there are many others who may actually welcome an 'off the shelf'
model.
3. An agreed list of definitions, combining those which the different
PA/JISC working groups came up with. We have in mind that not all of these
need to be included in every licence, although key definitions such as
'site', 'authorised user' probably should be. We suggest a reference to
the 'agreed PA/JISC list of definitions' for all the rest; this would
considerably reduce the length of licences.

The framework
This is the outline framework which we are currently working on, although it
is not yet finalised:
The parties
The product(s)
Key definitions
Permitted acts
Forbidden acts
Undertakings on both sides
Termination, and other legal necessities

We envisage this being the 'order of play' for most licences, which should
make it easier to find one's way round any licence.

Important terms
These are some of the key issues which can cause disagreement, and where we
are planning to recommend 'baseline' terms. Bearing in mind that this is
'work in progress', these are our current suggestions:

Remote access - our proposed baseline definitions of 'site' and 'authorised
users' will include members of the institution who are temporarily or
permanently working elsewhere; they will of course need password as opposed
to IP access.
Walk-in users - we are proposing that non-registered users should be
permitted access via specified terminal(s) within the library premises;
this is necessary because some libraries have a statutory obligation to
provide services to the public.
Redistribution - we plan to incorporate the recommendations of the Fair
Dealing and Inter-Library Loan working groups.
Responsibility for users' actions - we accept that librarians cannot
literally watch everything that every user does. We plan to ask that
licensees make users aware of the terms of the licence, inform the
publishers if they become aware of a breach, and cooperate with the
publisher to stop the breach as soon as possible.
Archiving - we accept that not all publishers have yet decided how they
will handle this issue in the longer term. We are simply recommending that
publishers undertake either to provide an archive themselves, or to arrange
for a third party to do it.
Even-handedness - we are recommending that not all the responsibilities are
on the user's side; the publisher should make (reasonable) commitments too.

Definitions
These are the items where we thought it was essential that we all used words
to mean the same thing. This becomes even more essential if we are
looking towards automated access control (a prerequisite for the 'one stop
shop') in future.

Our current working definitions are as follows:
Authorised users - members of the academic, library, research or equivalent
staff of the licensee (whether on a permanent, temporary, contract or
visiting basis) and individuals who are studying at the licensee's
institution, who are permitted to access the Secure Network from within or
outside the Site, and who have been issued by the Licensee with a password.
Site - The premises of the Licensee and such other places where Authorised
Users work or study, including without limitation halls of residence and
lodgings and homes of Authorised Users, and from which Authorised Users can
access the Electronic Material over the Secure Network(s) located at the Site
Secure network - A network which is only accessible to Authorised Users and
where the authorisation of Authorised Users, and regulation of their
conduct, is under the control of the Licensee.

The draft model licence, and the other JISC/PA working groups, came up with
many more definitions. As mentioned above, we are trying to conflate these
into a single list which could be made available (for example on the JISC
and PA Websites), and simply referred to, rather than included in its
entirety, in licences.

How you can help
Members of both the academic and the publishing community, and indeed other
players such as intermediaries, can help by letting us know what you think
about all these issues. The chairman of the working group is Charles Clark
at the Publishers Association, or you could contact Charles Oppenheim at
Loughborough or Toby Bainton at SCONUL. Once we produce our 'tool kit', we
will welcome as much feedback as possible. As time goes on, needs may
change, so the tools will undoubtedly need further modification in future.
Once we've got it as right as possible, please try to encourage libraries,
publishers and intermediaries to use it whenever appropriate. With your
help, I hope that we will be able to produce something which really makes a
difference for all of us.

Sally Morris
Director of Copyright and Licensing
John Wiley & Sons Ltd, Baffins Lane, Chichester, West Sussex, PO19 1UD
Tel: 01243 770365 Fax: 01243 770429 Email: smorris@wiley.co.uk



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