 Using licenses and contracts as effective tools for scholarship. Remarks by Jaren Wilcoxon at the 159th ARL membership meeting. Convened by Ann Walpert. Well sometimes after lunch you find that people are slumped in their seats, but I can see that's not the case with this crouch. Right eye and bushy tail and ready to do some serious thinking about licenses and using licenses as a business tool in negotiation. I'm Ann Walpert and I'm the director of libraries at MIT. If I haven't met you please come and introduce yourself after the meeting. I'm Ann Walpert and I'm the director of libraries at MIT. I'm currently the chair of the scholarly communications steering committee of ARL. And we planned a program for this session that talks to what we need to do in the emerging 21st century. And we think in this committee that one of the things we need to do in the emerging information world of the 21st century is think seriously about the license agreements that we signed with our publishers, database producers, book publishers as we move into the electronic arena. About 15 years ago some of you will remember the start of live license when we were deeply worried about what kinds of licenses we would have to sign with publishers of electronic journals. And we put a lot of effort into creating some model licenses around electronic journal licensing. And then we got distracted by price and we went off. We were worried a lot about price and we obsessed about price and we focused almost all of our negotiating energy on the bottom line of what it was going to cost us. And to a certain extent while we were doing that we stopped paying attention quite so closely to the terms and conditions that publishers, database producers, e-book publishers were requiring of us as a condition of handing over $1.4 billion to their coffers. So it seemed to the Scully Communications Committee that it was probably a good point in time to pause and say, wait a minute, we're in a business relationship with these people. Tons of contracts we negotiate now are going to influence what we could do in the future. We don't want to set the wrong kind of precedence. We don't want to think only about price. We want to think about the terms and conditions under which these materials come into our campuses. In many circumstances the terms and conditions that they request of us as libraries are totally at odds with the way the Academy does its work. They want to define who can use these things. They want to define who's a member of your community. They want to say things about what visitors can do. They want to say things about what affiliated researchers can do. And we need to start paying close attention to these terms and conditions, not just the money but the terms and conditions. And the way to do that is to begin to think more assertively about the fact that this is a business relationship. We write huge checks to some commercial providers of information. And we need to get back to thinking about what we want as research libraries from that business relationship. And to the extent that we can create a common understanding about the fact that this is a business relationship, a common understanding about what we think are best practices that support scholarship and research on our campuses, the better off we all will be. So the scholarly communications steering committee was able to horn swagger. My friend Jay Willcoxson, who's in the general counsel's office at MIT and who works with the libraries on licensing issues and thinks more broadly about business relationships that are managed through contracts and licenses to come and have a discussion with us. I promised him we were not going to ask him to lecture for an hour. I asked him if he would speak for 15 or 20 minutes, set the stage for us, and then engage in a dialogue with us about what we think the situation looks like, what we might need, how could we think strategically about this business relationship with publishers, and just open up our minds a little bit to a new way of thinking about our negotiations as a business relationship in which we have a state that's greater than dollars. So with that, I'm not going to give you a big fancy introduction. No, please don't. If you don't mind, Jay, we'll ask Jay to watch us off. Great. Thank you. Well, thank you everybody for having me here. This is a very new experience for me. I'm usually used to talking to a room full of lawyers. So I'm clearly outnumbered here today, but I think we can have some fun talking about some ideas. So let me preface one thing. I'm probably the least knowledgeable person in the room on the topic that we're about to talk about. I work very closely with the MIT libraries. I practice commercial litigation in a big law firm for 10 years. I did a lot of trademark and copyright work. I've now been at MIT for about four years, and I work very closely with the libraries and other parts of the institution on copyright issues. So I have a fairly deep knowledge of copyright, but you guys are out in the front lines of things dealing with day-to-day issues. So I'm sure there's a lot that I'm going to say today that you could all say better, maybe with more depth. But I at least wanted to kind of think through some issues, kind of talk about the stage for kind of what the issues are, talk about some of our own experiences at MIT where we've had successes and less successes in trying to negotiate interesting and different provisions into licenses. The goal is sort of pursuing our own, you know, specific institute mission, but then also I think a lot of the issues we've dealt with apply broadly to all research libraries. So, Andrade, I'm not going to talk for an hour. I'm hoping to talk for 10 or 15 minutes. And then hopefully we can have open up the floor to a discussion, and hopefully Anne and everybody else will facilitate that. Happy to ask questions. I probably have the same questions and not the answers, but again, I think hopefully by the end, maybe at least spark a discussion that we'll continue on. So just to set the stage, and again, I'm probably not going to say anything you don't all know, rewind a few years. As we all know over the last 10, 15 years, how information is created, delivered, shared, has changed in ways that we probably couldn't have imagined 10 years ago. We probably can't imagine the ways that information is going to continue to be shared and distributed and used in the future. And what that has done is created a much more complex landscape than what we had before. It would be very simple. You'd buy a journal or a book. It was in hard copy. And we were governed by the law, so we had to worry about for sale doctrine, pretty straightforward, back in the old days, maybe not so much anymore. Fair use. Never simple to apply fair use, but at least it's a concept that is consistently applied based on the type of work that you've got. It's a uniform rule, again, hard to apply, but at least we know that's the rule that applies. We've got the section 108 rules. We basically were in a law-driven construct, and so we knew that those were going to be uniform from situation to situation. And again, maybe there were challenges in applying those, but we knew we had a fairly finite area to consult when we had to determine what the rules were. But as information has been adapted to new technologies, we've shifted from a law-driven construct to a contract-driven construct. And as a result, each publisher is going to have its own incentives, its own desires, its own goals, and the contract between the library and the publisher is going to govern far more than the law. The law is still there, but we've now got another layer that we need to think about. We've got a patchwork of different rules depending on who you're negotiating with, depending on what the nature of the works are. It's going to be more complicated as books become more electronic, and so you've got just an endless number of rules that need to be thought through. And many times the rules that are applied by contract can erode the rules that were provided by law. You can always agree to things that restrict the application of law. And so I think where you've got an industry that feels as though its business model is vulnerable, whether we agree with that or not, that's their perception, at least that's what they're saying their perception is. And so their goal is to find ways to maximize revenue, impose more and more restrictions on the distribution, the use of copyrighted content, and to make it harder for libraries to manage how that information can be used. So they also have a lot of resources. They have a lot of smart lawyers. I'm sure you probably have fewer smart lawyers back there to help you. You've got in resources. You're trying to help your community with the underlying goal of your institution, which is to engage in scholarship and research. And so the negotiation of licenses has become probably something that we don't like to do. It's a distraction from our primary purpose in our profession. But it creates an opportunity, I think, for publishers to take advantage of that unequal balancing power and impose restrictions. So I think the main message here today that I'm hopefully going to spark a discussion about is that we need to be more vigilant, be more thoughtful, perhaps engage campus council or your institutions council on being a thought partner. I don't engage in a day-to-day negotiations of licenses, but as thorny issues have come up, we've partnered, my office has partnered with the libraries to think about ways to achieve things. Lawyers are often perceived as getting in the way of things. My office, the general council's office at MIT, has a very strong mandate from the top of my office to help facilitate things, to think creatively, to take risks. And so I think in my interactions with MIT libraries, we've succeeded in thinking innovatively about how we can use the licensing process as a business tool. And again, obviously price will always be a very driving component of it, but it doesn't need to be the only component. And I think we need to recognize that we have something that these publishers want, which is cash. They have something that we want, which is resources, and thinking strategically about how to use our relative bargaining powers to our advantage is important. So just as I was getting ready to talk to you today, I consulted with some of my colleagues in the libraries and looked back at some of the licenses that we've signed, just to sort of start thinking about some of the key issues that we've encountered, where we've succeeded, where maybe we could do better. And so I was going to kind of share at least a few examples, and then maybe I can open up the floor to a discussion about things that you think we should be looking for, maybe other success stories, other frustrations that we've had in this process. So one of the, I think, the big successes we've had in the last couple of years is really focused on securing more author rights. We have a faculty-adopted open access policy where MIT has given a license to all faculty scholarship right from the outset. As soon as it's committed to paper, we have a license to it for purposes of building our own institutional repository. Not surprising that publishers have pushed back on those types of policies and are trying to impose restrictions on how we can use those works. Of course, the faculty are off signing agreements that they don't read that also restrict their ability to do that. So we've tried to use the licensing negotiations as a sort of a balance of spenders approach. I mean, let's get at this any way we possibly can. And so as part of one of our big licenses, we actually secured rights to the institute, to all works in the database that are written by our faculty, our staff, our students. We're given added rights to those works. So it's not what's governed by the main license. We've got an addendum that says if there are works in this database that are written by your faculty, your staff, your student, here's an additional bundle of rights that you get. And those went directly to us. We talked back and forth about should those go to the faculty or should they go to the institution? And I was worried, you know, the faculty are not parties to the contract. There's no privity of contract. And why don't we get the rights directly to the institution and also secure the right to then grant those rights to the faculty? So we achieved quite surprising a lot of success in that. So that all the work in the database that are works by our faculty, we have the right to put those in institutional repository, use those for educational course packs, to put them on faculty's individual websites, to comply with funding agency requirements. And that's perpetual. So it's ours. We can basically port those works into our own institutional repositories. Such as an example of something where we felt we had a very strong mandate from our faculty to promote open access. And we recognized that there were a lot of challenges that were being, you know, roadblocks that were being put up by third parties. And so we said, well, let's find other innovative ways that we can help fulfill that, you know, that goal of open access. So I think that's a great success story. And, you know, we're trying to get it as often as we can. I don't know how much more success we've had other than this one instance, but we are trying whenever we can to find ways to facilitate our open access policy so that we can help the faculty not get themselves into these binds where they sign incompatible agreements. Some other kind of examples of things that we've negotiated that I came just sort of as a really just a kind of a laundry list. And I think one of the things that can be done today, I think developing a wish list is an important first step. You know, what is important to our users? What is important to the research that's going on? You know, what matters to the community and let's develop a wish list of things that we can think about trying to really work into our license negotiations. Authorized users is a big issue. They try to faculty, staff, and students are often the universe of users. At MIT, we have so many different permutations of affiliate. I've lost count. I'm sure that the numbers are infinite. But, you know, these are people who have a legitimate reason to be on our campus to be doing research, but they don't fit neatly into those boxes. And so making sure that you really have covered the entirety of your user community is important. And especially in the complex research institution like us where we've got off-site locations, you know, having something that says faculty, staff, and students and people on premises doesn't really solve the problem because you've got people dialing in from all over the place who may not... So, you know, they fall between the tracks if you're not thinking about, you know, who the potential universe of users are. Something that I think can easily be overlooked is having something affirmative in there that recognizes and acknowledges fair use. Again, it's very easy to contract away what the law provides to you. And these licenses are drafted in so many different ways. They're complicated. They impose a lot of restrictions that may not map neatly to what the law says. And, you know, they're maybe inconsistencies. And so making sure that you've got... You're preserving all of the rights that you've got under law so that there aren't inadvertent losses of, you know, what is provided to you by the law. Archive works, making sure that a company goes out of business. If they, for some reason, cannot continue to provide the works that there is a way to keep the works in perpetuity, whether providing a physical copy on a hard drive that can be loaded under your system, some way to ensure that these publishers consolidate and are bought and sold and that sort of thing, that there's enough information that can be used into the future. MIT is going to be here far longer than, you know, ABC Corporation is going to be here. So we always have to make sure that we protect what we need for the future. Library loan. I know interlibrary loan, and it was a big issue. It's not something I have a lot of familiarity with, but I know that there are, you know, again, with electronic files, publishers are far more concerned about how those can be shared and then redistributed and all of that. And trying to think about innovative ways that we can facilitate interlibrary loan requests other than printing out a document, scanning it, putting in the mail, you know, is, I think, something that, again, needs to be thought through. In addition to authorized users, I think authorized uses is important. You know, personal non-commercial use to me is very narrow. What does personal use mean? Does that mean I can read in my living room while watching TV? Or, you know, what does that mean? So making sure that educational scholarship, research, academic, you know, broadening the ways that these can be used is important as well. And an issue that we've found, I mean, we, you know, the way grad students and faculty members are using these are, the technologies have become so advanced that while I understand that, you know, crawling and robotting and all of that is, you know, I recognize the need to have restrictions on that, but there are, people are so quick and so adept at using these databases and that sort of thing that there's manual behavior that is sort of triggering shutdowns. And so making sure that you've narrowed the scope of, you know, what can cause a shutdown of access to the database is something to think about. I've heard anecdotes of, you know, situations where, you know, there's a live person sitting at the computer and they're just, you know, very quick, very facile with the technology and then all of a sudden it gets shut down. So, you know, spidering, I can understand, but it needs to be drafted in a way that doesn't sort of incidentally or accidentally bring in other legitimate uses. So those are just, you know, my sort of opening thoughts on things that we can think about. You know, I think the main messages, you know, we've been negotiating licenses for probably decades now. I don't know if decades, certainly a decade, 15 years. And I think as we migrated over, they were one-offs one at a time and probably now we're 10 years in and we've got this hodgepodge of licenses that are inconsistent, hard to follow. You know, again, how can we think more broadly, strategically? I think, you know, again, a good starting place is something that you would like to see in every one of your licenses. You know, what is important to your institution? What do you need to fulfill the desires and needs of your community? Come up with that wish list. Think about it, be strategic about it and really try it every instance to try to get those into your licenses. I think as a group, and again, I'm not any trust lawyer. I know we have to be mindful of, you know, conspiring and agreeing to too much, but I certainly think there's a lot of opportunities for groups to develop best practices, you know, model language, sample licenses. I know we rely a lot on the Northeast Research Library Consortium. There's a great model license there. So we don't have to reinvent the wheel and the more we're relying on, you know, from licenses, the more it's going to become a kind of common place for publishers to see these issues raised over and over in negotiations. Again, I'll make a plug for your institution's counsel. I think we can be thought partners. Again, I don't advocate that lawyers take over the negotiations. I mean, you're the user community that knows really what you need, but we can help think through issues and I'm happy to sort of think through how best I think that can be accomplished. I think we've developed a really good system at MIT that works well. Don't be afraid to walk away. I think, you know, if you don't want to open up money, they'll be happy to walk away. But I think they need us as much as we need them and I think, you know, being willing to be firm and stick to certain principles is, you know, something that's hard, but I think it's something that shouldn't be discarded. Great. Okay. Thanks. Thank you for listening. Music was provided by Josh Woodward For more talks from this meeting, please visit www.arl.org