IFLA Licensing Principles (2001)
The worldwide marketplace for all types of electronic information resources is rapidly being developed as publishers and vendors who create electronic information seek to attract libraries of all types (public, academic, special, national) as their customers. Today, libraries around the world continue in their role as mediators between citizens, including those affiliated with specific institutions, and information and cultural expression – roles that persist even more energetically, it appears, for electronic information than for print. And, just as libraries advance the archiving and preservation of traditional media, so they are seeking ways to ensure that electronic resources will be archived and preserved to be accessible over a long period of time.
Pricing also remains an issue: libraries continue to express concerns about the fact that a number of electronic resources appear to be priced higher than were their print counterparts.
While the library community strongly supports the continuation into the digital environment of exceptions that have been granted under copyright law, there are some areas where different procedures and policies need to be developed to handle electronic publications. Of particular interest to IFLA in the development of licenses is the following:
- Use of electronic information everywhere in the world is, at this time, usually defined and described by contractual agreements, otherwise known as licenses. These licenses describe comprehensively the terms of the provider/library relationship. Contracting is a comparatively new (1990s) way of doing business for most parties in the information chain.
- Licenses are pure marketplace arrangements in which a willing information provider and a willing purchaser of information access come together to make arrangements, deal by deal, resource by resource.
- User rights are defined within the terms and conditions of the licenses. They are not governed by (comparatively well understood) copyright legislation to the same extent as is the use of “fixed” or traditional information formats.
- Libraries generally provide patron access to such information via access to remote publisher or vendor sites, rather than library-controlled sites. Yet, the tasks and costs of libraries and information providers with regard to long-term archiving and preservation of electronic resources are disturbingly unclear. While a license cannot resolve this complicated set of electronic archiving issues, it will, generally, recognize them and express a set of commitments or expectations on the part of the contracting parties.
- IFLA views the licensing arena positively, although key issues remain to be resolved. In particular, licensing is showing itself responsive to the complex business arrangements being entered into between information providers and library consortia of different types and sizes. IFLA encourages and supports the evolution of all types of libraries negotiating as consortia. Nonetheless, even with the current move to licensing as a complementary means of regulating the use of electronic information, libraries and their users need effective, well-balanced national copyright laws that recognize not only the copyright owners’ need for remuneration and recognition, but also the critical purposes of public information, education and research. This balance, struck in carefully crafted copyright legislation, must find expression in all information resource licenses.
IFLA hereby presents a set of basic principles that should prevail in the contractual relationship and written contracts between libraries and information providers
Licenses and the Law
P1. Licenses represent an agreement between the library that seeks to make an electronic resource available for its readers or constituents, and a publisher or vendor who has the rights to such resources and seeks to make them available in the library marketplace. License terms and conditions must be fully available to customers in advance of their contracting for said resources. Every license is subject to discussion of terms and to negotiation between the parties.
P2. In the case of “shrink-wrapped” and “click-through” non-negotiated licenses, the terms should support public policies in such areas as copyright, privacy, intellectual freedom, and consumer rights.
P3. Licenses (contracts) for information should not exclude or negatively impact for users of the information any statutory rights that may be granted by applicable copyright law.
P4. The choice of applicable law should be acceptable for both parties. Preferably it should be the national or state law of the licensee.
P5. Licenses should be negotiated and written in the primary language of the library customer.
Licenses and Values
P6. The license agreement should be clear and comprehensive, recognizing the needs of the concerned parties. In particular, important terms should be defined so as to be clearly understood.
P7. The license should balance the rights and responsibilities of both parties.
P8. The license should provide for remedy periods and other modes of resolution before either cancellation or litigation is contemplated.
P9. The contracting parties should have the right to back out of the arrangement under appropriate and defined circumstances.
Licenses: Access and Use
P10. The license should provide access for all of the users affiliated with a licensee, whether institution or consortium, regardless of whether they are on the licensee’s premises or away from them.
P11. The license should provide access to individual, unaffiliated users when on the licensee’s premises.
P12. The license should provide access for geographically remote sites if they are part of the licensee’s organization.
P13. Remote access should be provided by way of a web-based, user friendly interface.
P14. Data that is downloaded locally should be available in multiple standard formats (e.g. PDF, HTML, and SGML), portable to all major computing platforms and networked environments.
P15. At a minimum the license should permit users to read, download, and print materials for their own personal purposes, without restrictions.
P16. Resources provided via remote access to providers’ sites should be available on a 24-hour basis, with appropriate “help” or service support, except for short scheduled downtimes announced with adequate notice to the customer library(ies). Penalties may accrue if service commitments are not met.
P17. A high degree of content stability, both in single and in aggregated resources, should be guaranteed and the institutional customer should be notified of changes. Penalties may accrue if content commitments are not met.
Licenses and End Users
P18. Libraries should work with users to educate them about proper use of electronic resources and take reasonable measures to prevent unlawful use, as well as with providers to halt infringing activities if such become known. Nonetheless, the library should not incur legal liability for actions of individual users.
P19. It is not appropriate to ask the individual user to agree to a contract, such as a “click” contract, where the institution/library has already made — or may engage in making — an agreement on behalf of its patrons.
P20. Users’ privacy should be protected and respected in the license and in any intervention made by information providers or intermediaries.
P21. The networked information provider should offer usage (as opposed to user) data so that the library licensee may assess the effectiveness of the use of the resource.
Licenses and Perpetual Access
P22. A license should include provision for affordable, perpetual access to the licensed information by some appropriate and workable means.
P23. A license should address provisions for long-term access and archiving of the electronic information resource(s) under consideration and should identify responsibilities for these.
Licenses And Pricing
P24. Prices should be established so as to encourage use rather than discourage it. For example:
- Many suppliers price electronic information at lower than the print equivalent (if there is one)
- Many suppliers now offer incentives, such as consortial pricing, a choice of pricing models, and the like.
P25. Prices should be fully disclosed with no hidden charges.
P26. An unbundled (from print) price should be offered for electronic versions; a bundled price may be offered as well where this offers advantages for the licensee.
P27. There should be no penalty for canceling print in order to take up the electronic version of a resource.
P28. Requirements for non-disclosure of license terms are generally inappropriate.
P29. Provisions for interlibrary loan or equivalent services should be included.
P30. In general, libraries should be able to deliver reasonable length extracts from licensed information to libraries that have not signed a contract for that information for use by a specific patron.
Teaching and Learning
P31. Licenses should support local teaching and learning efforts, from elementary through university level, by permitting links to, or copies of, specific course-related information to appear in online course-support activities such as electronic reserve.
P32. Distance Independent Learning poses a challenge to providers and libraries. Licensors should recognize the affiliation of users with a given library or institution, regardless of users’ physical location and should permit them routine access to licensed electronic information resources (see also clause 8).
Approved by IFLA’s Executive Board, March 2001