Karen Hunter-Response to ICOLC Statement

[Ann Okerson <aokerson@pantheon.yale.edu>]

Date: Thu, 25 Jun 1998 19:16:36 EDT
To: liblicense-l@lists.yale.edu
Cc: arh5@lehigh.edu, tom@ohiolink.edu, david.kohl@uc.edu, f.friend@ucl.ac.uk,
        mittler@mail.suc.uni-goettingen.de, Geleynse@kub.nl,
        j.gilbert@ub.unimass.nl, a.c.klugkist@ub.rug.nl, m.seeley@elsevier.nl,
        j.dijkstra@elsevier.nl
Subject: ICOLC response
>From Karen Hunter, k.hunter@elsevier.com 


With ALA on out doorstop, I thought you might want to post this to
We will also have printed copies available at ALA.  And a URL will
follow later.

RESPONSE TO ICOLC STATEMENT

INTRODUCTORY REMARKS

At Elsevier Science, we welcome the recent initiative taken by the
informal group known as ICOLC (International Coalition of Library
Consortia).  ICOLC issued a "Statement on Current Perspective and
Preferred Practices for the Selection and Purchase of Electronic
Information".  This can be found at

http://www.library.yale.edu/statement.html.  

We look forward to continued discussion with our library colleagues who
worked on the ICOLC statement.

In that context, we would like to note the earlier statement of licensing
principles issued by a group of Dutch and German librarians.  That
statement led to a series of constructive discussions in The Netherlands
and the likelihood of agreement on new experimentation.  We hope the ICOLC
discussions will have a similar positive note.

Indeed, journal publishers are pleased that librarians are actively
engaging in the negotiation process. All involved recognize that we are in
a period of transition in which publishers are providing more services and
information resources than the mere analog of the print journal. 
Libraries will act in the end as consumers in a free market and reward (by
purchasing) those services that are perceived by them as providing true
value for the library users. 

In such a period it is to be expected that there will be many experiments
as to authorized uses and fees.  Such "competition" should be viewed as
healthy and as leading to optimal solutions for users.  Indeed,
publishers, because of the nature of anti-trust and competition laws,
cannot collectively decide on a single approach or set of policies for the
library market. 

Publishers view contracts and licenses as a robust and clearer method of
resolving what might otherwise be ambiguities as to permitted uses and
limitations.  As we work in an increasingly international environment, it
is difficult to rely on national statutes for clarity. 

Publishers also want efficiency in the administration of contracts as much
as libraries do.  Therefore, publishers will often try to minimize non-
substantive negotiations, particularly on boilerplate items, and put the
energy into fundamental points.  That does not mean, however, that
publishers should be inflexible in meeting legitimate needs. 

SPECIFIC ICOLC COMMENTS

Looking at the ICOLC statement, Elsevier Science have the following
comments on the preferred practices requested by the statement's authors. 

PUBLISHERS SHOULD BE WILLING TO DEAL WITH CONSORTIA. - We agree.  We are
negotiating licenses with consortia for both our local (Elsevier
Electronic Subscriptions) and remote (ScienceDirect�) electronic services. 
Both libraries and publishers can benefit from consortia licensing.  While
the benefits of consortia arrangements are most evident with locally-held
files (where the infrastructure cost is shared by several institutions),
it is also possible to construct win-win agreements for licensing of
remote access. 

STATE ALL TERMS IN THE CONTRACT AND HAVE ALL TERMS NEGOTIABLE. - Certainly
all terms should be stated and, in general, all terms should be open for
discussion.  Often "boilerplate' is far more easily adjusted to suit a
library's requirements than one might think.  The key is for both sides to
make clear what is desired and why.  Often it is possible to arrive at an
acceptable compromise.  And, as noted above, keep in mind -- in deciding
which issues to try to change -- the need both sides have for efficiency. 

CONSORTIA SHOULD BE ABLE TO SHARE PRICING AND OTHER TERMS WITH EACH OTHER.
- We recognize that in most U.S. states contract terms for state
institutions are a matter of public record.  Therefore, it is understood
that public contract terms will be shared.  However, we feel librarians
must also understand that publishers are interested in experimenting and
in tailoring their offers to the specific opportunity presented by a given
consortium.  Each consortium is different, so it will be normal to have
some differences in agreements.  Electronic products are often
customizable and it is difficult to compare the terms and conditions of
two consortia.  In the longer term, even fewer organizations will be
receiving the same mix of content and functionality.  Publishers may
change their strategies or pricing propositions as they learn more or get
market feedback. Consortia should take advantage of this flexibility to
craft the best arrangements rather than pushing a publisher to make
identical offers. 

LIBRARIES SHOULD NOT BE ASKED TO PAY FOR UNDELIVERED FEATURES. - We agree. 
This is an example of what makes comparing the prices paid by different
consortia difficult.  The deals may be negotiated at different stages in
the service's development process and may reflect a different set of
features or file availability. 

NO HIGH PREMIUMS FOR BETA VERSIONS.  Again, the principle is sound.  One
may question what is considered "high" and what is a "beta version",
however. 

LIBRARIES SHOULD NOT PAY ALL R & D COSTS - THESE TO BE SHARED WITH
SHAREHOLDERS.  Elsevier Science has set its prices for electronic products
to reflect market and competitive realities, not recovery of costs.  The
prices we are charging for the electronic contents and infrastructure are
below cost.  We hope that there will come a time when our costs drop
sufficiently to be at or below our electronic prices. 

LIBRARIES WOULD LIKE TO BUY ELECTRONIC WITHOUT THE PAPER AND AT A COST
LOWER THAN THE COST OF A PRINT SUBSCRIPTION.  Both EES and ScienceDirect
permit buying of an electronic-only subscription.  There are several
alternatives for purchasing and, under some of these alternatives, a
decision not to buy the paper results in the electronic version being
slightly lower in price than the paper subscription.  We would note,
however, that over time the electronic version will be less and less a
mirror of the paper, as it will have non- printable items and other
features of greater value.  Therefore, it should be expected that there
will be more and more distinction between the paper and electronic
editions and their pricing. 

PUBLISHERS SHOULD HAVE MULTIPLE, FLEXIBLE PRICING MODELS.  Elsevier has
probably lead the way here, as we have both remote and local options and,
within each, more than one model for licensing.  In addition, we are
testing new models with the University of Michigan in its PEAK project
(http://www.lib.umich.edu/libhome/peak). 

BUNDLING PRINT AND ELECTRONIC SHOULD NOT BE THE SOLE OPTION AND PUBLISHERS
SHOULD NOT TIE TO A BASE YEAR OR NO CANCELLATION.  We offer a number of
alternatives.  Some of our individual journals are available on their
individual Web sites free to individuals at institutions subscribing to
the paper.  One of the reasons for this is to minimize overhead costs and
permit outreach to authors and readers of these journals.  Our broad
institutional products (EES and ScienceDirect) do not bundle paper and
electronic - as noted above, you can buy electronic only.  However, we do
also try to look at the total amount of money being spent on Elsevier
journals at that institution, and we can offer terms (for example, caps on
annual increases) if there is a willingness to make a longer commitment. 
Libraries always have the alternative to choose another, less binding
option (with the understanding that the terms will generally not be as
favorable). 

ELECTRONIC FILES SHOULD BE AVAILABLE AT OR BEFORE PAPER.  We agree and we
are working to reach that target.  Our current pricing reflects current
delivery practice. 

LIBRARIES WANT PERPETUAL ACCESS TO CONTENT, TRANSFERABLE TO DIFFERENT
DELIVERY OPTIONS.  This is a very complicated area and one that will take
a great deal more discussion.  Ironically, this has generally not been an
issue in the twenty years of online database services (e.g., Dialog). 
Services have come and gone, as have databases, without the requirement of
perpetual access.  As we move now into more archival information being
(potentially) solely available in electronic form, the concerns are
growing.  Elsevier Science is committed to working with libraries to find
solutions for long-term access and archive issues. 

LIBRARIES SHOULD BE ABLE TO ARCHIVE (E.G., MAKE BACK-UP COPIES)  We do not
now have wording in our licenses that covers this and we would want to
work through specific examples with library partners. 

PUBLISHERS SHOULD OFFER OPEN LOCAL SYSTEMS, PORTABLE TO MAJOR PLATFORMS
AND COMPLIANT WITH CERTAIN STANDARDS.  Our EES service (which grew out of
the TULIP experiment) has always been a champion of open architecture.  We
are not currently providing the data in MARC format, but the headers are
SGML and can be routinely translated into local library systems. 

PUBLISHERS SHOULD OFFER A VARIETY OF FORMATS: REAL PDF, SGML, HTML, ETC. 
Our ScienceDirect service offers some journals in real PDF and HTML
(generated from SGML on the fly) and will ultimately make all journals
available that way.  Our EES local solution also plans to offer real PDF,
HTML and SGML.  However, we would note that there are very significant
costs associated with this for the publisher.  Libraries should expect
that (1) not all publishers will be able to do this and (2) for many
publishers there will be a need to charge a higher price to cover these
options. 

PUBLISHERS' OFFERINGS SHOULD BE ABLE TO BE INTEGRATED WITH OTHER SYSTEMS. 
Again, this was a principle on which TULIP and EES were built.  We
completely support this and are very willing to work with libraries to
make it happen. 

GIVEN THAT E-INFORMATION PROVIDES NEW CAPABILITIES AND VALUE-ADDED
FEATURES, PUBLISHERS SHOULD NOT PLACE ANY UNDUE RESTRICTIONS OR BURDENS ON
USE.  This is a very broad statement, as what a librarian may call "undue
restriction or burden" may be felt as essential for the publisher.  Many
content providers are highly concerned that the digital capabilities make
infringement easier and therefore places them at risk.  Our basic
philosophy is that each institution should enter into a license on the
part of the users who belong to that institution.  The Elsevier Science
licenses are very liberal as to what those authorized users can do
(including course pack use) and this has not been a problem area in
license negotiation.

PUBLISHERS SHOULD PERMIT FAIR USE UNDER THE LAWS OF THE COUNTRY OF ORIGIN
AND PERMIT PAPER AND ELECTRONIC ACADEMIC INTERLIBRARY LOAN.  Contrary to
the statements made in the introductory section of the ICOLC statement, we
do not think fair use is "under attack".  Many fair use laws have
ambiguities built into them and publishers - just as librarians - are in
good faith trying to resolve those ambiguities in the electronic context. 
Licenses are an appropriate way of doing this, as license wording is
generally clearer than statutory language. 
     
As to the specific ICOLC statement, we admit to being uncertain about the
notion of using the laws of the "country of origin".  It seems to us that
the applicable fair use laws should be those of the country of the
licensee, but we are open for discussion on this.  (Would German
librarians agree they are subject to U.S. fair use laws because the
ScienceDirect database is housed in Ohio?) 

With respect to ILL, this has been a long and difficult discussion.  In
the U.S. we have asked that librarians be more open to acknowledging that
the electronic world is not the same as the paper environment and
therefore there need to be new guidelines (CONTU having been specifically
negotiated to cover photocopying in the pre-document delivery world). 
That has not happened. 

We have recently announced a change in our ILL policy to permit the use of
licensed electronic files as a source for printing copies to be sent to
other non-commercial libraries.  The new policy is intended to provide
libraries with greater flexibility and efficiency in meeting their
national lending obligations. 

LIBRARIES SHOULD NOT BE LIABLE FOR CONTENT MISUSE IF THE LIBRARY DID NOT
"INTENTIONALLY ASSIST IN OR ENCOURAGE SUCH BREACH TO CONTINUE AFTER HAVING
RECEIVED NOTICE."  There seems to be agreement that the online service
provider (in this case, the university or the library as the contracting
agency) must be aware of an abuse before any repercussions would be
considered.  The question is: what happens once the abuse is known?  If
the library steps in but nothing changes, are there no consequences?  It
is not our view that the library should have criminal or financial
liability.  However, depending on the circumstances, continuing abuse
could lead to termination of the license. 

ELECTRONIC FILES SHOULD BE OPEN TO WALK-IN USERS.  Our licenses permit
on-site access for members of the public who are permitted to enter and
use the library. 

USAGE DATA SHOULD BE SHAREABLE WITHIN THE CONSORTIUM.  We agree, provided
the data sharing is indeed limited to consortium members. 

THE PROVIDER SHOULD GATHER AND SHARE USAGE DATA WITH THE CONSORTIUM. 
Again, in principle we agree.  Libraries and publishers need to negotiate
realistic expectations about what data can be readily gathered by the
content provider (particularly where there are third-party aggregators
involved). 

ANONYMITY AND CONFIDENTIALITY OF INDIVIDUAL USERS SHOULD BE MAINTAINED. 
We understand the implications of the privacy issue.  It should be
understood that there is a compromise between monitoring for misuse and
invasion of privacy; in the former one looks to the pattern of use, not
the specific files searched, search terms or end user identity. 

PUBLISHERS SHOULD ADHERE TO LIBRARY PRINCIPLES ON PRIVACY.  Probably no
problem - but these are not familiar to most publishers. 

BE FLEXIBLE AS TO AUTHENTICATION. - We offer IP, ID and password, and a
combination (where an individual user within an IP environment can elect
to set up an ID and password in order to do the customizing that
individual accounts permit). 

IN SUMMARY -- There are a lot of comments here, but it is our contribution
to the dialog that the authors of the ICOLC statement want to have. 
Elsevier Science is in agreement with, and practices, most of the points
raised in the ICOLC statement.  But we do have slightly differing views on
a few areas and look forward to discussion, either with ICOLC or with
individuals negotiating consortium and single institution licenses. 

Contact:

Karen Hunter
Senior Vice President
Elsevier Science
tel. 212-633-3787
fax 212-633-3764
k.hunter@elsevier.com