RE: ALA Panel on Perpetual Access - seeking input - More on New Me=

[richards1000@comcast.net]

Respecting licensing relating to perpetual access to new media,
the issues seem complex and potentially burdensome.  A major
challenge is ensuring that downstream archival rights were
obtained by the administrator from each author at the point of
original posting.  Implied license may not protect a third party
archiving agency.  And since many new media works are
compilations (such as a blog exchange featuring multiple authors
and commentators), simply obtaining the host's permission to
archive the entire blog won't suffice, because each author has
copyright in his/her posting/comment.  For example, one would
want a blog host or preprint service provider to provide
expressly in its clickthrough agreement for posters and those who
add comments, that by posting/commenting they agree to allow the
host/provider to transfer the data downstream to a third party
archive.

For the library community, licensing implementation would be
laborious.  Perhaps academic publishers that host new media could
be persuaded to include new media in their existing author
agreements.  But respecting other new media providers, this means
great numbers of agreements to review, or negotiations with great
numbers of new media providers to incorporate standardized
downstream archival language favorable to libraries.
Irrespective of the category of new media provider, great numbers
of ad hoc agreements would have to be negotiated directly with
individual authors where the new media provider failed to obtain
archival rights in the first instance.  This may indicate the
potential benefit of a detailed SERU-like perpetual access
agreement, or several such agreements, suited to particular types
of transactions, that cover new media materials as well as
ejournals and ebooks, and which could be used in direct
agreements with authors and by new media providers.

Indemnification will likely be an issue too, because some new
media postings may contain infringing material (e.g., a blog
posting may contain copyrighted video posted without permission
of the rights holder). I don't think SERU covers indemnification
for IP infringement, and it's unclear whether indemnification
could be effectively incorporated into a detailed SERU-type form
for perpetual access.

--
Robert C. Richards, Jr., J.D.*, M.A., M.S.L.I.S.
Philadelphia, PA
E-mail: richards1000@comcast.net
* Member, New York Bar, Retired Status