Please Respond Off List to This eLaw ILL Request: How Institutionalized are Model License Use Terms?

Kristin R. Eschenfelder, Tien-I Tsai, Xiaohua Zhu and Brenton Stewart, University of Wisconsin-Madison, School of Library and Information Studies, offer a timely analysis of eJournal license use rights clauses from 2000-2009 in College & Research Libraries.

From the abstract of How Institutionalized are Model License Use Terms:

This paper explored the degree to use terms proposed by model licenses have become institutionalized across different publishers’ licenses. It examined model license use terms in four areas: downloading, scholarly sharing, interlibrary loan and electronic reserves. Data collection and analysis involved content analysis of 224 electronic journal licenses spanning 2000–2009. Analysis examined how use terms changed over time, differences between consortia and site license use terms and differences between commercial and non-commercial publisher license use terms. Results suggest that some model license use terms have become institutionalized while others have not. Use terms with higher institutionalization included: allowing ILL, permitting secure e-transmission for ILL, allowing e-reserves with no special permissions, and not requiring deletion of e-reserves files. Scholarly sharing showed lower institutionalization with most publishers not including scholarly sharing allowances. Other use terms showing low institutionalization included: recommendations to avoid printing requirements related to ILL, and recommendations to allow hyperlinks for e-reserves. The results provide insight into the range of use terms commonly employed in e-journal licenses.

(Emphasis added.)

Instead of principles, how about model license clauses? The above research report is highly recommended for lessons that can be learned if our professional association wants to "interfere" in the vendor-institutional buyer contractual relationship by developing model license use terms that address the current business model for licensing all forms of law eContent (albeit unenforceable on the vendor community but loop back up to the study's findings). Note well that the the typical AALL or AALL chapter member's response to listserv eText ILL requests after AALL's nationwide official web communications clamp down because one unnamed vendor threatened to sue everyone's ass has become "please respond off list." Well, pirates we may be but at least this approach "permits" secure e-transmissions for fulfilling ILL requests.

Great way to "advocate" the case for fair use of licensed eLaw resources AALL under Principles for Licensing Electronic Resources (Adopted November 2004):

A license agreement should recognize and not restrict, abrogate or circumvent the rights of the licensee or its user community permitted under copyright law, including but not limited to the fair use provisions of Section 107 of the U.S Copyright Act (17 U.S.C 107) and the interlibrary loan provisions of Section 108 of the U.S. Copyright Act (17 U.S.C. 108).

Instead  AALL's Principles for Licensing Electronic Resources warns

In the area of licensing electronic resources, failure on the part of the licensee to read and understand the terms of the agreement may result in such unintended consequences as:

• the loss of certain rights to uses of the resource that would otherwise be allowed under the law (for example, in the United States, such uses as fair use, interlibrary loan, and other library and educational uses);

Don't you just love how this document is stored in the "Advocacy" subdirectory of our professional association's website. But I digress, or do I?

What the heck. In the March 2012 AALL eNewsletter comes this report from AALL's President:

Task Force on Library Procurement Process Opens Survey

Recently, I appointed the Library Procurement Process Improvements Task Force to address one of the outcomes from the Vendor Colloquium Action Plan. As part of its work, the task force has developed a 10-minute survey to gain additional feedback from AALL members. The results from the survey will help identify areas of high priority as the task force continues to review the Final Report of the Special Committee on Licensing Principles for Electronic Resources and creates a checklist based on these principles to serve as additional guidance in the library procurement process.

(Emphasis added.)

Wow! It really looks like AALL has been up to something. At least that is how it appears until you click on the above cited "Final Report" because it is dated 2004. That eight year old report which apparently is now being reviewed served as the basis for AALL's Principles for Licensing Electronic Resources (2004). Perhaps in AALL-land nothing has changed since 2004 so that "Final Report'" use as the basis for additional work is OK.

Do we really need a "checklist" based on 2004 principles? Wouldn't model licensing clauses based on issues presented by current vendor licencing boilerplate terms and conditions of use for all legal eTexts be more useful for member institutional buyers? At least that is a viable work-around vendor NDAs.

Aternatively, perhaps the Final Report is just a bad link that wasn't caught by whomever checks the eNewsletter issue before it is released, assuming of course, that someone actually does that. Hell if I know. [JH]