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
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.
How Will Library-Licensing Practices Change with UCITA?
Charles E. Kratz, Library Director