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Re: UK model licence update 

Sally Morris, of John Wiley & Sons, UK, kindly sent us the text of
her recent talk about licensing and model licenses.  Thanks to her
for this informative piece.

Ann Okerson
Liblicense Project
____________________

Forwarded message:
Date: Tue, 5 May 1998 13:50:41 +0100
To: aokerson@pantheon.yale.edu
From: Sally Morris <smorris@wiley.co.uk>
Subject: Re:  UK model licence update

Copyright and model licences

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

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

How do copyright and licences fit together?  

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

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

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

Is a single model licence feasible?

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

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

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

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

Convergence

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

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

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

The PA/JISC 'draft model licence'

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

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

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

Next steps

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

The framework   

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

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

Important terms

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

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

Definitions

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

Our current working definitions are as follows:

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

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

How you can help

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

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


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