Information Update - Spring 2001

How Will Library-Licensing Practices Change with UCITA?

In a UCITA (Uniform Computer Information Transactions Act) world, libraries will most likely encounter a variety of licensing situations, from the free-wheeling, highly negotiated contract to the more uniform standard form contract with terms varying according to the type of library or institution. So, in some instances, vendors will negotiate with libraries in the same way they do now. Contract negotiations will be very open, and the result will be a very tailored, individual contract. In more instances, libraries will receive a standard form contract that they can sign as is or try to negotiate.
Librarians or other designated licensing personnel will need to examine standard form contracts carefully before signing on the dotted line. UCITA proponents hope to use standard form contracts to get as close as possible to the "one size fits all" license environment for institutional customers like libraries and thereby streamline the licensing process. For libraries, however, the time and resources necessary to read, evaluate and negotiate license terms will actually INCREASE with UCITA. Librarians will need to monitor and evaluate the standard license terms to ensure that fair use, personal use copying, and other user rights are not contracted away.
For larger college and university libraries, the click-on, non-negotiated license typical to mass-market products may not be the norm when initially negotiating for products. But updates to the license agreement may be the click-on variety. Library personnel, probably technical support staff, who load computer files and updates to electronic resources will have been alert to click-on licenses that accompany the product updates. These individuals will have to be trained to read the click-on license before loading the product. Clicking the "I agree" button will signal that the library agrees to the terms of the updated license. Once staff have read the terms that accompany the click-on license, they must also be able to identify changes to the contract and alert the appropriate licensing staff in the library.
Licenses that would be enforceable even more easily under UCITA include notices that allow the vendor to change the terms of the license at any number of times without notifying the licensee. Libraries will need to develop some process to identify potential changes to license terms by checking periodically with the vendor or the vendor's web site to see if contract terms have changed. All of the licenses and updates must be filed or managed in some fashion so the library will always be aware of the terms that currently govern the agreement.
Libraries will need to closely monitor whether vendors have sought to include "automatic restraints" in the product license and to seek ways to avoid disruption of service. UCITA allows vendors to use "automatic restraint" and "electronic self-help" techniques when they deem it necessary and without some of the protections (such as a prior court order) that you might now think would be required. These techniques allow the vendor to disable the product remotely because of a perceived misuse of the product or because payment has not been received on time, or upon expiration of the stated duration of the contract. In addition, preservation and archival functions will be hampered if electronic products "disappear" upon expiration of the license.
Libraries will also want to evaluate closely any contract language that may impact user copying, downloading or other fair use privileges. License provisions may restrict traditional "fair use" of a product by defining what rights buyers have in relation to an information product. For example, license provisions could exclude the right to quote from a work, or make a small portion of the work available for personal use, or to use the product in a non-profit, educational setting. Libraries must also consider how standard form licenses may impact the library's ability to lend digital resources, particularly interlibrary loan lending. If your library has shifted to an "electronic only" version of a journal due to space or budget constraints, you will still want to be able to lend articles to other libraries but you may not be allowed to do so.
Smaller libraries and public libraries may more likely encounter the click-on, non-negotiated license as more advanced software and informational products like databases are marketed directly to the consumer. The public library may find itself purchasing more products right off the shelf like consumers do. Certainly, libraries of all types acquire electronic newspapers like the Wall Street Journal where click-on licenses "pop up" on the computer screen and the user is asked to accept license terms. In the future, libraries may need to consider how the library is affected in a decentralized license environment where users, technical staff, and others agree to license terms that may commit the institution to certain contract terms.
At this point in time, we do not know the extent to which libraries and library users are clicking on non-negotiated licenses. Hopefully the American Library Association will develop a mechanism for collecting this kind of data now, so we can better illustrate the impact on libraries and user information rights.

Charles E. Kratz, Library Director