Mark Bide, Mark Bide & Associates
email: Mark_Bide@compuserve.com
Charles Oppenheim,
International Institute for Electronic Library
Research,
De Montfort University
email: charles@dmu.ac.uk
Anne Ramsden,
International Institute for Electronic Library
Research,
De Montfort University
email: ar@dmu.ac.uk
August 1997
The group agreed that progress could most easily be made if a short study were prepared on current practice, incorporating a matrix of the types of use and the types of users for which clearance might be needed. As a result of this request, the JISC commissioned this Supporting Study from De Montfort University.
The first part of the report, which is based on discussions with representatives of a number of current experimental projects at UK HEIs (primarily but not exclusively projects funded under the eLib Programme) and with publishers, considers a number of the key issues which will need to be resolved in the search for a clearance mechanism which is satisfactory to both rights users and rights owners. The second part of the report proposes a matrix of uses and users designed to support the development of consistent clearance procedures and mechanisms for digitisation.
In this context, we believe that it is highly desirable that we see the development of a "one stop shop" mechanism to simplify clearance of digitisation rights (in this specific context of the digitisation of printed materials) although we do not make explicit recommendations on how such a mechanism should be established.
For our purposes, we will define "electrocopying" as the generation of a facsimile image copy of the printed original and digitisation as the generation of a machine interpretable and indexable version of the page. The former is, of course, a possible precursor of the latter; and the latter may (using Adobe Capture or an analogous technology) also be a facsimile image of the printed page. Nevertheless, there are fundamental differences in terms of utility, cost of production and (from the point of view of the rights owners) risk which mean that a careful distinction needs to be drawn. We were surprised that, at the point of requesting permission, few of the projects which we looked at specified to publishers the format in which they were proposing to store digital copies.
From the point of view of rights holders, we believe that it is foolish to ignore this reality. This is an activity which will, which must, go on. The key question is whether rights owners explicitly licence electrocopying in this context, or whether they pretend it is not happening. We contend that rights owners will be far better protected by recognising and licensing this type of use than by allowing it to go on by default. The same is true of storage of the images for re-use in printing further copies onto paper. There is nothing to be gained in promoting inefficient use of the technology. We believe that this type of electrocopying and electrostorage, as a precursor exclusively to the production of printed materials (to the extent that these are being produced under the terms of a valid photocopying licence) should be explicitly allowed for in future re-negotiation of licence agreements between the rights owners and the Higher Education sector.
However, it does need to be recognised that such image formats are also being used as a delivery mechanism for on-screen display; a pioneering project in this use is, of course, the ELINOR project at De Montfort. A number of the current eLib projects have also opted for image rather than true digital storage. There are considerable advantages in terms of cost of production for image files, which may be particularly significant where the primary use is expected to be of printed output. However, there are obviously massive disadvantages in terms of file size, access mechanisms and on-screen usability which would suggest that, increasingly licence requests are likely to seek permission for "true" digitisation.
Publishers discovered for themselves the problems involved in digitisation several years ago, and a number of techniques have been developed to overcome the problem where conversion of printed texts to electronic form for "re-purposing" has been necessary. In this context, we note that the Higher Education Digitisation Centre was established last year with eLib funding; this centre should be in a good position to learn from existing experience and help HEIs towards more economic methods of digitisation than they have sometimes adopted in eLib projects. Publishers should note, incidentally, that the HEDC has also stated its intention of providing assistance in copyright clearance and has recently appointed a copyright officer.
It is essential to recognise that broadly all the materials that we see being digitised (rather than being licensed in electronic formats) in current projects is being used in teaching rather than research which substantially complicates the economic issues.
The problems of arriving at an acceptable price are well laid out in a paper by Phil Sykes, the Project Director of the eLib project On-Demand Publishing in the Humanities based at Liverpool John Moores University. This paper "Agreeing a price for electronic documents" can be found on the project web site and lays out a list of factors which might be seen as reasonably influencing the price to be charged which include:
However, the latter certainly has draw backs. The question is asked whether or not an individual publisher's pricing model which effectively prohibits digitisation does not represent undue interference in academic freedom by effectively dictating what materials can be used in teaching. We are aware of at least one case where it proved impossible to get permission to digitise a particular document, and the academic concerned was persuaded to recommend an alternative text for digitisation. However, he continued to recommend the original text to his students as a result of which the digitised text was never accessed.
These indeed are difficult issues to resolve; an increase in open communication between the users and rights owners is essential to gain further mutual understanding of the complexities involved.
It is perhaps worth mentioning here an issue that causes particular problems in some HEIs: being charged for digitisation of research papers written by their own academic staff. This is a practice which we believe publishers could usefully review.
This issue was highlighted by the rights clearance exercise undertaken by the Rights Department of the Open University on behalf of Project Phoenix. They found that the fees quoted for this "digital" project were substantially higher than they would normally expect to pay for rights to include content in their own conventionally printed course materials even though the quantities involved were much smaller. Fees were reduced as a result of negotiation based on communicating to rights owners a fuller understanding of the nature of the project, which took the form of a digital archive of materials for printing on-demand and was not (as many rights owners had thought) engaging with the networked digital display of content.
However, negotiability of rates is a double-edged sword. Critically, if negotiability is to be retained in the system, it more-or-less rules out the possibility of introducing any sort of "one-stop-shopping" through a centralised agency. While those with both time and expertise may get a lower rate for their licences, this will have to be weighed against the overhead incurred by both users and rights owners - all of which has to be paid for somewhere within the system as a whole.
Concern is often expressed that course packs are "more expensive" than text books when clearly they should be cheaper. This is to turn conventional economics on its head. A course pack is a customised product, and rarely are customised products cheaper than mass- produced ones. The problem is exacerbated by the strong view held at some universities that teaching support materials (including course packs, for example) should be distributed free or at a cost well below their true economic value - a view which does not extend for some reason to the distribution of conventional text books.
This is not the place for an extended discussion of publishing economics. However, we see it as extremely important that a proper dialogue be opened on the real issues that are involved. The economic impact of providing online access to two different types of content may be completely different. The value of different types of content varies considerably with time, for example.
It is, then, unsurprising to us that many projects find what appears to be an inconsistent approach from the publishing industry as everyone strives to find ways of dealing with this complexity in ways which are equitable and market sensitive but which at the same time do not threaten the long-term commercial viability of entire sectors of publishing.
At the same time, we urge publishers to look at the issues from the viewpoint of real economic impact - is it really of any advantage to them to have students queuing to make personal use of a photocopier rather than having access to an online resource?
Publishers have therefore felt the need to use specific licence arrangements to protect their interests. However, these licences are only as effective as the licensee's willingness and ability to enforce them. Libraries in HEIs should be in a better position than many libraries to enforce compliance because all (or at least the great majority) of their users have an explicit contractual relationship with the institution. We are uncertain of the extent to which HEIs include in their student regulations and staff contracts terms which explicitly cover intellectual property rights and compliance, but would urge that this should become the norm.
It has, after all, become common in many commercial contracts of employment that breach of copyright (software theft, for example) is regarded as gross misconduct. This is certainly the case in many publishing companies. We see no reason why serious misuse of digital content should be regarded in any other way. We also favour the development of consistent policies for all universities for such breaches.
In return for the active development of compliance culture in Higher Education, rights owners can reasonably be expected to strive to make compliance with licences as easy as possible.
The problem is exacerbated in projects which cover multiple sites, but where the project itself cannot enter into contracts on behalf of the other institutions.
There are considerable difficulties with this whole area and a real sense in which publishers are damned either way - either for taking a cavalier attitude to others' rights or for taking too long to grant clearance as they seek to ensure that they have all the permissions which they need. There is a considerable cost (and considerable elapsed time) involved in seeking permissions retrospectively - and it is all too easy to be wise after the event in realising that you should have cleared these rights in the first place!
There is no easy solution to this problem. However, we do not believe that it is reasonable for publishers to grant a licence - and accept payment for that licence - while at the same time refusing to take proper responsibility in providing an indemnity to the user for a breach of third party copyright.
HEIs would understandably much prefer a licence with automatic renewal at the end of the term in the absence of notice from the licensor since this would put the onus on the publisher's system; the publisher, naturally, would rather that the administrative burden falls on the HEI. The lack of adequate systems to support licensing arrangements is obvious in both publishers and HEIs.
The other major issue which has arisen in discussions about term relates to what happens to the digital copy when the licence term ends. Publishers were originally insistent on a "destruction" clause but have recently shown much more sympathy for the idea that expensively digitised resources should not simply be destroyed.
There has been much talk of "escrow" arrangements (with the implication of "trusted third parties") although there are considerable complexities (and costs) involved in the development of such arrangements for relatively low-value content (source code escrow arrangements are common in the licensing of high value, customised application software). It may well be possible, in the light of agreement on issues like compliance, to come to arrangements which allow the HEI to continue to archive and maintain the digital copy, allowing only "administrative" access (in the absence of a specific permission from the publisher). It is conceivable that archiving of this type could constitute an additional role for HEDC.
Access - whereby the Licensee provides access to and permits copying (downloading, printing) of the digital form of publications, subject to the conditions of the licence agreement, by its authorised users for their scholarly, research, educational and personal use by means of workstations located (1) within the library; (2) connected to the campus network; (3) off-site (e.g. at home, in study bedrooms, or the workplace). Licensee may agree to restrict access to an authorised site.
Allowed - this means the activity is considered to be fair dealing, is covered by the library privileges or for other reasons is not copyright infringement. This means the library or Licensee does not have to request permission from the copyright owner for such activity, and shall not pay anything to the copyright owner for the activity. It is, however, recognised that such activities may infringe Moral Rights, and there is still an obligation to respect any Moral Rights present.
Archiving - The Licensee may be permitted to archive (rather than destroy) a digital copy for future use, but such an archive might only be accessible for administrative purposes (i.e. to reload when re-licensed) rather than for "use". See also Term.
Back-up copies - similar to archiving but for the purposes of restoring electronic files in case of failure of the electronic information management system.
Commercial use - use of the material for the purposes of monetary reward, whether by or for an authorised end user or the Licensee by means of sale, resale, loan, transfer or hire of the copyright material to any third party. Commercial use does not cover use in the course of research funded by a commercial organisation. Commercial use includes providing any person representing or acting on behalf of a commercial entity access to the LicenseeÆs facilities for a fee. See also Unauthorised Use.
Copying electronically - see Electrocopying.
Course pack - a collection of material, planned and systematically printed to support a module or course of study.
Dial-in access - off-site users may use a modem and perhaps a local Internet provider to obtain access to electronic resources provided by the libraries. This is permitted for users whose primary work or study location is within the authorised
Digital Libraries - see Electronic Libraries
Digitisation - making and storing a fully machine readable/indexable copy (with optional features such as tagging or indexing terms applied).
Display - is the output, in part or in full, of records retrieved in a search which are displayed on the video screen of any terminal, workstation or personal computer used by an authorised user.
Downloading - means the transfer of data in any form from the collection to any computer storage device, computer peripheral or computer so that it survives an individual search session. It is somewhat broader in scope than temporary electronic storage, which is confined to a single machine. Downloading does not include printing output from a search, any momentary process by which data are transferred from one computer to another or from a computer to a printer for the sole purpose of printing output from a search.
Electrocopying (see also Digitisation) - making and storing a digital image of a printed page. In general, such activity shall require a Licence.
Electronic Copyright Management System (ECMS) - such a system embodies tracking technologies and accounting to handle payment for the use of copyright materials, but does not necessarily include copyright protection techniques such as watermarking. The ECMS working group at the Imprimatur Consensus Forum 21/22 November 1996 described an ECMS as follows: it is the main goal of an ECMS to ensure that creation providers can get return for the usage of their works at a minimum level, ECMS should be a mechanism for tracking use of works could also be used to track supplier of information it should enable licensing of works payment is related but separate issue provision of catalogues of works and of access to the works was considered a related but separate issue.
Electronic Document Delivery - in which documents are copied by a dispatching library or a document supply centre, and the process involves the creation and/or delivery of material in digital form. This will normally require a licence.
Electronic Libraries (also known as Digital Libraries) - are collections of library materials in machine-readable form with associated indexing and cataloguing information.
Electronic reserves - These are structured collections of "reserve" or heavy demand materials in digital form. They are intended to replace "Reserve" or "Short loan" collections, which were developed as a solution to the problem of providing sufficient copies of undergraduate texts to meet the demands of large numbers of students all requiring access to the same texts at the same time. The copyright items held in such a system may be electrocopied whole works and/or pieces of works such as specific chapters, illustrations and/or articles. Shorter items may be digitised, converted to machine readable text and indexed for retrieval purposes.
Authorised users access the digitised publications in the electronic reserves in connection with course instruction. Such users may view pages (and may incur access charges) onscreen and/or purchase printed (single copies) pages. See also: On-demand publishing and Course Packs.
Fair Dealing - Authorised users may make copies (print or digital form) of a licensed work unless limitations on copying are specified in the agreement. Copies can be made for the purposes of criticism, comment, news reporting, private use or research. Other uses will require written permission of the Licensor. The JISC/PA working party on Fair Dealing is publishing a list of activities which are agreed to be fair dealing in the electronic environment.
Inter-library loan/ Document Delivery - this is a service whereby a specific document is requested by a user or a library from a document supply centre or another library. Usually inter-library loans involves the photocopying of printed works and delivery of a (printed) copy of the document (whether by post, fax or secure transmission using Ariel or its equivalent) to another library, which can be facilitated by use of the digital resource. ILL activities undertaken by a library as described in, and permitted by, Sections 37 - 44 of the Copyright Designs and Patents Act, 1988, as amended by any subsequent Statutory Instruments, are always allowed. Any similar activities but not conforming to the requirements of the law shall always require a Licence. In the electronic world, the Licensee may wish to transmit electronic or digitised materials within the licensed group of users. As long as it is carried out as presented in the Copyright Act, this is allowed. See also Electronic Document Delivery
Licence/ Licensed - this means that the activity is based upon a permission granted by the copyright owner. The licence is the written contractual agreement of that permission.
Licensee - the organisation that signs the licence to receive materials. In general it is much easier to get a licence signed by a single University than on behalf of a consortium of Universities, or some body acting on their behalf, or some independent third party.
Licensors - are the authorised sellers of licensed information. The licensor may be the Publisher, which has copyright in the licensed work. The licensor has the rights owner's (e.g. author/creator's) permission to licence the use of a printed work in digital form. The licensor specifies in the licence agreement who may access the licensed information, when they may access it and what they can do with the information, for example, view, retrieve, print, download. Licensors may limit access and use of the digital information by means of conditions or limitations, for example, commercial use, alteration or modification of the licensed materials. The Licensor/Publisher may terminate the Licensee's authorised users access to the digital works.
On-demand publishing - an operation which builds and delivers printed pre-assembled course packs as an integrated part of a selected number of courses. Pricing and retailing of the printed packs is commonly carried out in conjunction with campus booksellers or the library. Printed materials are digitised/electrocopied, stored in an electronic storage and retrieval system and then printed on-demand by authorised users. The online document or publications database may integrate with library management software, which allows users to access the online document database through the online catalogue interface.
Authorised users use the course packs in connection with their course instruction. Such users may access the online document database and purchase (1) printed copies of packaged course packs , or in the future, there is the possibility of (2) 'pick and mix' items from the online document database and purchase the resulting tailored course pack in printed form. The concept of 'pick and mix' raises a lot of issues which need to be explored by publishers.
Payment - this may involve one or a combination of the following: a buying-in fee, annual licence fee, a pay-per-use charge based on the number of pages viewed onscreen and/or print charges, an electronic document delivery charge, etc.
Permanent electronic storage - this is the retention of a electrocopy or digitised copy of the copyright material by the authorised user for an indefinite period for his own personal use.
Printing - is the output, in part or in full, of records retrieved in a search and which is either printed on a printing device that is part of, or connected to, an authorised user's workstation or terminal or is printed at a centralised printer in the University.
Re-dissemination - redistribution [of a specified number of copies] of machine readable form of copyright material to [other authorised users in the University][third parties in any institution of higher education].
Record is a machine readable unit that represents all or part of a single item, including tagged fields containing data primarily associated with that item.
Search is the execution of a command or commands to a computer to find a string of characters for the purposes of retrieving an appropriate document or documents.
Site - the geographic location or locations where authorised users work or study, including Halls of Residence, faculty and staff houses and homes, nominated by the Licensee and listed in a Schedule, from which authorised users can access the material.
Term - Materials are accessible in the electronic collection for a term or period determined by the Licensor, for example, for the length of the related course semester or for an academic year. Copies of items in digital form will be deleted by the Licensee after the end of the designated licence period unless the Licensor agrees to the archiving of digitised items (i.e. not destroyed), which are accessed for administrative purposes only, until re-licensed for the next required term e.g. semester.
Temporary electronic storage - authorised users retaining any data in machine readable form temporarily for the purposes of making a single human readable copy. This type of transient storage which is necessary to make machine readable data readable on a VDU should be allowed.
Viewing - this is displaying, together with reading printouts. It is recommended that all such activities are always allowed.
Unauthorised use - use of licensed information which is not covered by the terms of the licence agreement, for example:
University - an Institution of Higher Education as defined in Section 65(5) of the Further and Higher Education Act 1992, Section 40(3) of the Further and Higher Education (Scotland) Act 1992 together with any similar Institutions funded by the Department for Education, Northern Ireland.
The following groups of users will normally be considered under the terms of a licence agreement:
| Types of users | Electronic Reserve | On-Demand Publishing | Inter-library loans | Electronic Document Delivery |
|---|---|---|---|---|
| Activity by library | Licensed: Electrocopying or digitisation i.e. electronic storage and indexing of work; archive; back-up copies |
Licensed: Electrocopying of printed pages under licence for delivery of printed course packs or parts of; archive; back-up copies |
Licensed: Electrocopying of items which are part of library's holdings for delivery to another library of an analogue copy (by fax or secure transmission e.g. Ariel); No permanent storage by receiving library. |
Special contractual terms |
| Authorised users on-site | Allowed: Viewing full text, printing of limited no. of pages Pay: may be access and/or print charges
|
Allowed:
Viewing full text, printing of limited no. of pages.
Licensed: for whole course pack. Pay: may be access &/or print charges per page
|
Not applicable
|
Not applicable
|
| Authorised users off-site | Allowed: Viewing full text, printing of limited no. of pages Pay: may be access restricted |
Not allowed
|
Not applicable
|
Not applicable
|
| Open user-group registered on-site | Not allowed
|
Not allowed
|
Not applicable
|
Not applicable
|
| Open user-group registered off-site | Not allowed
|
Not allowed
|
Not applicable
|
Not applicable
|
| Closed user group on-site | Allowed: Viewing full text, printing of limited no. of pages Pay: may be access and/or print charges |
Allowed: Viewing full text, printing of limited no. of pages Licensed: for whole course pack Pay: may be access &/or print charges per page |
Not applicable
|
Not applicable
|
This report considers a number of the key issues which will need to be resolved in the search for an efficient clearance mechanism, which is satisfactory to both rights users and rights owners. A vocabulary is presented in order to establish some common understanding of uses, users and licensing terms and user types between both parties. And finally, a matrix is defined which will serve as a quick reference point for activities by libraries and users, which may be allowed under licence or under fair dealing.
It is clear that many of the issues which apparently divide librarians from publishers are solved or soluble. However, there is the major economic issue over pricing of digital use which is proving extremely difficult to resolve for both rights owners and rights users. We believe that this topic can only benefit from further open discussions as each party develops a better understanding of the other's predicament. Mutually acceptable models for pricing should not be beyond us. Once such pricing models have been developed, there should be little to hinder the development of a "one stop shop" clearance mechanism.
[Index of JISC/PA Working Party Papers and Reports] [Meta-index of Papers, Reports and Circulars]
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