Copyright clearance and digitisation in UK Higher Education:

Supporting Study for the JISC/PA Clearance Mechanisms Working Party


Authors

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

Contents

  1. Executive Summary
  2. Introduction
  3. The primary issue - what constitutes digitisation?
    1. Electrocopying
    2. Digitisation
    3. Standards issues
  4. Pricing
    1. Pricing models
    2. ECMS
    3. Unpredictability of pricing
    4. Are rates negotiable?
    5. Economic realities and distortions
  5. Some other contractual issues
    1. The "chain of compliance"
    2. "One stop buying"
    3. Do publishers own the rights which they are being asked to grant?
    4. Term
  6. Development of a publishers "code of practise"
  7. Definitions of use and users for the Clearance Matrix
    1. Clearance/Licensing Terms
    2. Types of users
  8. Matrix of use and users
  9. Recommended Codes of Practice
    1. Libraries
    2. Publishers
    3. Publishers and Libraries
  10. Conclusions and Recommendations


Copyright clearance and digitisation in UK Higher Education:

Supporting Study for the JISC/PA Clearance Mechanisms Working Party

1. Executive summary

  1. This study was undertaken to consider the issues relating to the clearance of rights by HEIs for the digitisation of materials originally published in print. The study was proposed by the members of the Joint Information Systems Committee (JISC) and the Publishers Association Working Party on Clearance Mechanisms, chaired by Dominic Knight of Macmillan Publishers and was commissioned by JISC in February 1997.
  2. The first part of the study focuses on issues drawn from discussions with representatives of a number of experimental projects at UK HEIs (primarily but not exclusively under the eLib Programme) and publishers.
  3. The study draws attention to the two different modes of what is broadly called "digitisation". Careful distinction needs to be drawn between "electrocopying" and "digitisation", because of the fundamental differences in terms of utility, cost of production and (from the point of view of the rights owners) risk. Despite this, few of the libraries' projects specified to publishers the format in which they were proposing to store digital copies.
  4. We note that the Higher Education Digitisation Centre (HEDC) has been established with eLib funding, to help HEIs towards more economic methods of digitisation. The HEDC has appointed a copyright officer for the purpose of providing assistance in copyright clearance.
  5. The development of standards for technical format, unique identification, mark up for digitised files and metadata would be highly desirable.
  6. Undoubtedly the key issue in licensing of digitisation is in finding a mutually acceptable solutions to pricing. More open discussion is needed between publishers and users to gain further mutual understanding of the complexities involved.
  7. Current licensing models tend to deliver prices which librarians find daunting and have no mechanism for recovering from users. There is also considerable variation in pricing of materials from different sources, particularly since the experience of many of the projects is that rates are negotiable. However, negotiability of rates may be made impossible by the introduction of "one-stop-shopping" through a centralised agency.
  8. Electronic copyright management system technology for solving the many problems of managing licences for digitised content is not yet proven. In the absence of ECMS a strong "compliance culture" will be essential.
  9. There is a strong preference on the part of both users and rights owners for straight forward, simple and above all, brief contracts for licensing.
  10. To facilitate this there is a need for a shared, unambiguous licence vocabulary.
  11. The report proposes a set of outline definitions of uses and user types to aide the development of this vocabulary.
  12. Using these definitions, a matrix of use and users is defined to show types of activities for which a library may seek to licence materials from a publisher and for which a publisher may grant a licence.
  13. It is not only publishers who are responsible for delay in licensing arrangements, for example, where a project covers multiple sites, and an agreement with one publisher requires several signatures by separate institutions.
  14. Do publishers own the rights which they are being asked to grant? If not, there is considerable cost and elapsed time involved in seeking permissions retrospectively, but it is clearly unacceptable to take a cavalier attitude to others' rights.
  15. 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.
  16. Publishers are attempting to minimise the term for which a licence may be granted because of the uncertainties involved, but this creates a heavy administrative burden for the licensor and licensee.
  17. The lack of adequate systems to support licensing arrangements is obvious in both publishers and HEIs.
  18. In seeking to establish a code of practice for publishers in respect of clearance of digitisation rights, the main issues to be tackled are that clearance takes too long and the time it will take is not predictable. When approaching a publisher, it is very difficult to know who to approach. Many of the problems could be resolved if a "one-stop-shop" central agency could act on behalf of publishers in granting digital rights (or acting as a clearing house for requests).
  19. We also believe that it would be highly desirable to develop standards for EDI for rights clearance and management, which would greatly simplify the process for both licensor and licensee.

2. Introduction

In July 1996, the Joint Information Systems Committee and the Publishers Association established a series of joint working parties to seek consensus over a number of issues relating to digital exploitation of copyright content in the Higher Education sector. One of these Working Parties was asked to look at issues relating to the clearance of digital rights. The Working Party met in September 1996 and elected Dominic Knight of Macmillan Publishers its chairman. It agreed to limit its remit entirely to issues relating to the clearance of rights for the digitisation of materials published in printed form.

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.

3. The primary issue - what constitutes digitisation?

We realised quite early in our consideration of the question of digitisation that there is a fundamental difference between two different modes of what is broadly referred to as "digitisation" which appears often to have been overlooked or, at least, its significance misunderstood. This is the difference between what we will choose from hereon in this paper to call "electrocopying" and true "digitisation."

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.

3.1 Electrocopying

Electrocopying is now an everyday fact of life. An increasing number of "photocopiers" are now, in fact, digital copiers with no optical path between the original and the copy. The Xerox DocuTech is far and away the most widely used piece of equipment in course pack production; any document which is copied on the DocuTech must, by definition, be electrocopied. A growing number of user-operated copiers appearing in University libraries are digital copiers. Analogue photocopying may not disappear for many years to come, but it is an obsolescent technology.

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.

3.2 Digitisation

Experiments with digitisation by several of the eLib projects have demonstrated the problems which are presented in the conversion of printed originals into machine readable form. Rights owners, whether publishers or authors, are understandably concerned that conversion should be accurate (a variable attribute, but it is clear that acceptable levels of accuracy can not be achieved using straight OCR technology).

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.

3.3 Standards issues

If the most effective use is to be made of materials once they have been digitised, there are strong arguments in favour of the introduction of standards in terms of technical format, unique identification, and mark up (for digitised files). The Dublin Core could, for example, form the basis of a metadata standard. We believe that this issue, which also encompasses issues of long term archiving, is one which will need to be the subject of serious common study on the part of both users and rights owners.

4. Pricing

We will move straight to the issue of pricing, not because we have any solution to propose to the problems posed by pricing but because a mutually acceptable solution to the problem of what level of price it is reasonable for an HEI to pay for digitisation and subsequent use in digital form is essential if any progress is to be made in making use of the potential of digital delivery.

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:

By including this list we are not necessarily endorsing it as the way in which the whole question of pricing should be approached. Indeed, it would be possible to argue that this would arrive at an entirely cost-driven pricing model rather than a properly competitive market-driven model.

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.

4.1 Pricing models

We can see a number of different models being proposed; unless there is some consensus on the most appropriate approach many of the other pricing issues may be difficult to resolve. Pricing may be segmented by use or by user, but the pricing models themselves fall into the following categories:
  1. Digitisation fee: some publishers are levying an initial fee covering simply the permission to digitise with additional usage-based fees
  2. Pre-paid licence fee: similar to the subscription-pricing model. For many librarians, a single annual fee for the term of the licence has many attractions not least because of the inadequacy of Electronic Copyright Management Systems (ECMS) - a topic to which we will return. There are substantial benefits in terms of predictability for both licensees and licensors. However, there are also drawbacks: fees based on a cost-per-page-per-student or on the price of the book and the number of students tend to work out at levels which librarians find daunting and have no mechanism for recovering. Further, even if the price is acceptable, there is some lack of flexibility in that this model of pricing does not reflect usage in any way. We see also some use of "concurrent- user" pricing, which we would argue is a wholly inappropriate measure of value in this context.
  3. Fee for printing: printing fees have been one of the mechanisms which, from the earliest experiments like ELINOR have been seen as holding out the greatest advantages. However, ELINOR has demonstrated that there may be a drawback to this mechanism to the extent that students tend not to print the document - having found what they want, they either read it on screen (if there is not too much of it) or take the book from the shelf and copy the appropriate pages. There are further technical issues relating to measurement of printing of web-based resources which will continue to complicate this issue.
  4. Fee for access: there is a distinct feeling of unease about the introduction of fees simply for accessing an electronic document in a library which is based on physical-world models. However, at least one publisher is proposing a model licence which includes access fees (with "relatively modest" printing fees being additional).

4.2 ECMS

There is optimism among rights owners that the development of effective ECMS will solve many of the problems of managing licences for digitised content. We are not quite so certain. There is a growing view that the considerable overhead involved in comprehensive ECMS may be insupportable for content which is not of high intrinsic value (which is broadly speaking the sort of content which we are discussing here). One thing is certain - appropriate technology is not currently available. Meantime, one eLib Project, ERCOMS, proposes to develop a cost-effective, generic solution to ECMS based on tracking technologies, which will be made available to HEIs. We will wait to see if this is effective.

4.3 Unpredictability of pricing

One of the problems facing librarians considering the possibility of seeking digitisation rights is the very considerable variation in pricing which they experience from different sources. This makes coherent planning very difficult. Many smaller publishers appear willing to grant permission without charge, while larger publishers' methods and rates of payment vary considerably.

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.

4.4 Are rates negotiable?

The experience of many of the projects shows that rates may well prove to be negotiable - particularly if placed in the hands of an experienced rights negotiator. As far as we are aware, no other university is as well equipped in this respect as the OU who had considerable success in negotiating rates for Project Phoenix.

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.

4.5 Economic realities and distortions

One of the greatest problems that arises in discussions over pricing relates to the hidden economics of the publishing process. The largest of these arises over the cost of photocopying and "on demand" printing. Perhaps because the quality of the end result is so much lower than for a printed page, there is some sense that photocopying or on demand printing is in some way "cheaper" than conventional print. This is, of course, true for single copies but ceases to be true in fairly low quantities.

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?

5. Some other contractual issues

If one thing stands out from the experience of the projects we have spoken to so far, it is the strong preference on the part of both users and rights owners for straight forward, simple and, above all, brief contracts for licensing. However, the successful implementation of simple licensing arrangements in the long term will depend above all on two developments:
  1. The agreement of a shared, unambiguous licence vocabulary and structure
  2. The development of a culture within the user community which seeks to comply with the spirit of licence agreement rather than to seek "loopholes"
We hope and believe that the activities of the various JISC/PA working parties will have a strong influence on the former. We will, though, briefly discuss the latter.

5.1 The "chain of compliance"

The successful implementation of strategies for digital use of content (whether digitised by the user or supplied in digital form) will depend on the ability of the rights owners to protect their investment. Current development of technical protection are not adequate to meet market demand and (for reasons which we have already discussed above) may never be so for the type of content which we are discussing here. Copyright legislation is perceived not to give adequate protection - or at the very least to be far too blunt an instrument.

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.

5.2 "One stop buying"

Many of the problems which HEIs have in respect to their relationship with publishers are replicated in reverse. We have, for example, see one very simply licence which required the signature of one publisher - and four separate Universities. It is not only publishers who are responsible for delay in licensing agreements.

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.

5.3 Do publishers own the rights which they are being asked to grant?

One of the major difficulties which has come to light as a result of the eLib programme has been the growing recognition that publishers can license to users only those rights which they unambiguously own themselves. This extends not only to the question of whether the original grant of rights from the author is adequate, but also the extent to which component parts of a work "particularly illustrations" are owned by others. There are also the considerable complexities surrounding the whole question of rights reversion to authors (often, but not invariably, rights revert to the author when a book goes "out of print").

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.

5.4 Term

There are at least two issues which arise concerning the term of licences which need to be considered apart from the length of initial term granted. At the moment, publishers are typically attempting to minimise the term for which licences are granted, which may be understandable in view of the considerable uncertainties involved. If, however, the annual subscription licence is the preferred model, then a short term would benefit both parties, but it inevitably creates a very heavy administrative burden for the licensor and licensee.

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.

6. Development of a publishers' "code of practice"

From the licensee's point of view, publishers need to address two issues urgently with respect to developing a code of practice:
  1. Clearance takes too long, and the time it will take is not predictable
  2. When approaching a publisher it is very difficult to know who to approach; personnel who have been dealing with a particular licensing issue leave and are not replaced; it can then be very difficult to pick up the threads of a negotiation
Many of these problems could be resolved if a "one stop shop" central agency could act on behalf of publishers in granting digital rights (or acting as a clearing house for requests). We also believe that it will be important to develop standards for EDI for rights clearance and management which would greatly simplify the process for both licensees and licensors.

7. Definitions of use and users for the Clearance Matrix

It has been said earlier that there is a strong preference on the part of both users and rights owners for straight forward, simple and above all, brief contracts for licensing, and to facilitate this there is a need for a shared, unambiguous licence vocabulary.

7.1 Clearance/Licensing Terms

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 Licensee∆s 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:

  1. Users should not make licensed information available to non-authorised users - that is, any person not specifically identified in the licence agreement as an authorised user.
  2. Commercial use of licensed information
  3. Alteration or modification of licensed information

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.

7.2 Types of users

This section identifies who may have the right to access, retrieve, display and make copies of licensed digital information. In most cases, users in the Open User Group, including Consortium and Metropolitan groups will be excluded from obtaining such access.

7.2.1 Authorised users

these are both authorised users on-site and authorised users off-site. It is possible that the Licence may distinguish between these authorised users, for example, by licence terms and prices.

7.2.1.1 Authorised users on-site

Authorised users on-site - any individual who, whether on a temporary, permanent or visiting basis, and whether full time or part time, is employed or engaged under contract as part of the academic, library, research or equivalent, or is a student, and whose functions are carried out on the Site and who the Licensee wishes to authorise to have access to the material. They automatically cease to become authorised users if they cease to be studying at, or cease to be academic, library, research or any other equivalent level of employee of the University.

The following groups of users will normally be considered under the terms of a licence agreement:

7.2.1.2 Authorised users off-site

any individual who, whether on a temporary, permanent or visiting basis, and whether full time or part time, is employed or engaged under contract as part of the academic, library, research or equivalent, or is a student associated with the University, anywhere in the world, who the Licensee wishes to authorise to have access to the material. They automatically cease to become authorised users if they cease to be studying at, or cease to be academic, library, research or any other equivalent level of employee of the University.

7.2.1.3 Closed user group on site and off site

this is a much smaller group within the authorised users group, such as students enrolled on a specific course or module. This may be relevant to the activity: Electronic Reserves, where users enter a login such as "username" and "password" to access materials relevant to their course.

7.2.2 Open user group (External groups, general public)

Open user group - these will generally not be permitted to use materials under the Licence. This group may be further categorised according to whether they are registered to use certain library facilities or casual, unregistered users with restricted access to facilities, for instance, no rights to access to networked services. Within this latter group there may be regional user groups.

7.2.2.1 Open user group - registered on-site

These may or may not be authorised users depending on the licence terms of the agreement:

7.2.2.2 Consortium

Co-operative network of universities within a geographic region, for example, 13 Scottish universities collaborating in the eLib SCOPE project.

7.2.2.3 Metropolitan user group

Similar to the above, but includes a wider range of Institutions, both public and academic, within a Metropolitan district, for instance, Manchester)

7.2.2.4 Open user group - un-registered on-site

These may or may not be authorised to use licensed materials:

8. Matrix of use and users

This matrix is defined to show types of activity for which a library may seek to licence materials from a publisher and for which a publisher may grant a licence. The use of the term "Licensed" indicates the sort of things we are looking to see allowed under the general terms of a licence agreement. "Allowed" is normally an acceptable activity under the terms of the licence and may be regarded as fair dealing.

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

9. Recommended Codes of Practice

While we believe that, in the medium term, there would be substantial advantages in developing a "one stop shop" for digitisation rights-clearance, in the interim we have developed the following recommended codes of best practice for both libraries and publishers:

9.1 Libraries

  1. Can you identify the rights holder?
  2. Include in the permission request letter the following details:
  3. Indicate how the publisher will benefit, for example:
  4. Indicate if access control mechanisms are in place, particularly if the World Wide Web is to be used as the delivery system.
  5. Enclose two copies of a proposed agreement (there are several public domain examples: Acorn project's Heads of Agreement, ELINOR model licence, ECUP model contracts for books and journals, and the JISC/PA proposed standard licence) as the basis for establishing a working relationship for the duration of the project, or ask for a copy of the publisher's standard agreement
  6. Use unambiguous licence vocabulary and structure.
  7. Clarify that the publisher has the digital rights to a work(s) including illustrations, photographs, tables etc.
  8. Indicate timescale for the project and likely duration of any licence agreement.
  9. Give a contact name and telephone number for (1) rights negotiation and (2) project details.
  10. Are the terms satisfactory?
  11. It is easier to negotiate a licence for a single institution rather than for a consortium.
  12. Review current student regulations and staff procedures which cover intellectual property rights and compliance.

9.2 Publishers

  1. Identify or create a central contact point in the company for electronic rights enquiries from libraries and develop a methodology for dealing with requests for rights which the publisher does not own (bearing in mind that requests for digitisation rights clearance are certain to increase.
  2. Having identified who owns the rights requested:
  3. Specify available electronic formats for cleared materials, e.g. PDF, LaTex, ASCII etc.
  4. Supply a standard agreement if available or develop an agreement based on an existing document supplied by libraries using unambiguous licence vocabulary and structure.
  5. Be prepared to negotiate on licensing terms and conditions and price.
  6. Establish consistent pricing structures for different types of materials: short extracts for anthologies; articles; chapters; whole works.
  7. Speed of response is critical.: publisher should aim to have put forward a licence proposal within four weeks of receiving a request.

9.3 Publishers and Libraries

Keep full and well-organised records of correspondence, contracts and meetings with the other party or parties.

10. Conclusion and recommendations

As libraries' requests for permission to digitise materials increase in frequency and become more complex, more work is inevitably created for rights holders in responding to these requests. Libraries need to create processes for generating requests. Publishers, in turn, come under pressure to accelerate delivery of decisions about digital use, licence agreements and prices.

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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