Where is the balance between two utopian visions?
Workshop participants observed that two contrasting utopian visions of the future of scholarly communication motivate developments in electronic publishing. For many publishers, the technology provides an opportunity to make more money by charging for every information use. For researchers, the technology holds the promise of free access to information for all. Librarians recognize that the information will not be free, but they seek to provide unfettered access to their users to the extent possible within existing budgets.
Over the last two or three years, interested parties have attempted to establish new rules of business for digital works with voluntary guidelines for fair use. These efforts, such as the Conference on Fair Use,6 have foundered on the conflicting utopian visions of the parties involved. They have, nevertheless, served to educate all communities about the nature of the differences that divide them. Meanwhile, those engaged in private license negotiations and consortial arrangements have discovered the powers of the marketplace to forge workable solutions. As one participant observed, the longer the library and publishing communities are engaged in these activities, the more rational are the business models they adopt and the licenses they negotiate. The requirement for access management systems to allow for the ambiguity inherent in the related law also becomes clearer, as does the need for access management even when no fees are charged (for instance, to comply with the terms of a gift).
Libraries are learning that they can respond to terms and conditions they see as unreasonable with the assistance of market forces. As they gain more experience in providing access to electronic resources, they are discovering that most users will accept less than the utopian ideal of free access to everything when they understand the underlying business model and find it reasonable. Publishers, too, are beginning to see that they are unlikely to earn more revenue from their traditional customer base for scholarly journals; furthermore, they recognize that libraries are making an honest attempt to comply with reasonable terms but cannot be expected to control or monitor their users’ behavior closely. Nor can the lack of a robust means to enforce copyright still be blamed for holding back electronic publication of scholarly journals. If anything, their volume is increasing so rapidly that academic libraries are having difficulty absorbing them. Although license terms still vary from publisher to publisher, the agreements are growing more similar with experience.
Workshop participants argued that simple, liberal license agreements of the kind used by JSTOR should be the model for the future.7 Such agreements are clearly less costly to negotiate and implement than others. Licensee institutions should be free to define their user community in the agreement and should take responsibility for authenticating their users (and providing credentials that certify roles, if necessary). Participants also urged publishers of specialized journals not to limit access to specific categories of academic users, as laid out in scenario 2. This practice was seen as a poor business model, since use by community members outside the specific group for whom access was purchased was unlikely to be significant. Prototype access management systems should operationalize simple agreements, to avoid raising expectations that unreasonable conditions could be enforced. Publishers who use simpler business models and offer reasonable license agreements, argued Vicky Reich of HighWire Press and Stanford University, are better able to expand into new markets.
At the same time, some participants strongly recommended that the academic community continue to press for free access for all to the scholarly literature. Such “blue-sky” talk, they said, would offset the commercial pressure for pay-per-view access and dampen the ability of publishers to implement access management systems based on that model. They believed other business models could be constructed to support the costs of managing and providing access to high-quality scholarly information.
What perspectives are needed?
Participants were instructed to consider the two scenarios from two perspectives: user and provider. All three groups, however, soon reached the conclusion that the discussions, particularly of scenario 2, must take into account the perspectives of three entities: publishers, libraries as intermediaries or institutional users, and individual end users. To be successful, an access management system must be acceptable to both the end users and the intermediary library. The difficulty is, these parties differ greatly in their goals, economic motivations, legal responsibilities (particularly regarding liability), and in the different values or utilities they attribute to particular publications or works.
Licenses typically represent agreements made between libraries (or parent academic institutions or consortia) and publishers (or publishers’ agents). Access management systems that operationalize those agreements, however, will limit what operations an end user can perform on a digital work. Systems must permit an end user to negotiate different terms and conditions for use of a work by establishing a different role through a separate or additional agreement. For example, enhanced terms might be based on an individual society membership or subscription, or on the acceptance of a charge. Some lawyers pointed out that for the end user to be able to exercise some of the privileges afforded by law or take advantage of ambiguities, he or she should be able to make an informed decision to ignore clauses in an agreement made between a library and a publisher. Agreements, suggested one participant, should incorporate formal loopholes permitting a wider range of operations from a special location or through an additional level of authorization.
The fact that all three discussion groups found it necessary to make a distinction between the end user and the institutional user acting as intermediary suggests that access management systems should be designed with such a distinction in mind. One group report included the observation that there will sometimes be a chain of obligation through several intermediaries from users through libraries to publishers (possibly through third-party aggregators) and eventually to authors.
Will there be slow evolution or a revolution?
For libraries, publishers, and the communities they serve, networked access to scholarly information is not a completely new business, but an extension of an existing portfolio of services in an existing economic structure, with staff and customers familiar with old practices. Although there are hopes for long-term efficiencies in replacing paper-based information products with electronic equivalents, and the transformation of the process of scholarly communication has begun, libraries and publishers must deal with both for many years to come. The continuing availability of well-managed, high-quality bodies of scholarly information will depend on professionals who must be rewarded for their efforts. The economic balance among authors, publishers, aggregators and other service providers, libraries, and users may adjust over time, but unless the adjustment is gradual, existing products and services are likely to suffer.
Although participants were not asked to consider the interests of authors, it was clearly assumed that access management systems must be acceptable to authors who wish to disseminate their work to the scholarly and scientific communities. Simple business models reflected in effective access management systems would go a long way towards satisfying the needs of authors as well as other interested parties.
Academic users expect predictability and continuity. They expect the electronic environment to offer the functional equivalent of privileges that exist under current copyright law as applied to physical works, including but not limited to fair use. Conditions on the use of electronic versions of articles that create new impediments to research, to teaching practice, or to collaboration across disciplines or between faculty and students are cause for substantial complaint. The academic user expects to have access to information and be able to use it for scholarly purposes at a reasonable price, preferably, but not necessarily, zero. Charges for photocopying and photographic reproductions are common in academic libraries, which may also charge for or limit use of other services. However, users expect free access to the information traditionally found on the library shelves, such as journals to which the library subscribes.
Publishers and learned societies must find ways to reallocate resources and adjust their business model without destroying their short-term financial viability. When negotiating licenses for electronic versions of print publications, they clearly need to maintain revenue (or increase it to cover the new costs associated with the networked dissemination). Learned societies, in particular, are likely to have no cash reserves to invest in the hope of future cost savings; preserving cash flow is a matter of survival.
Libraries, too, are facing serious budget constraints. Many must make do with flat or shrinking budgets not only to maintain existing collections and services while struggling to keep up with prices for serials that are outstripping the rate of inflation, but also to meet the demand for new online services. They hesitate to accept pricing models that do not guarantee control over acquisition budgets.
Will economics govern acceptance?
The acceptance by libraries and end users of electronic publications and associated access management systems will be determined, at least in part, by economic factors. Libraries regularly look for cheaper ways to provide the same services or ways to provide enhanced services at costs they can justify or recover. Users will pay for services and academic administrations will increase budgets only if they expect to receive value for the expenditure.
Transaction costs associated with managing and providing access to scholarly information must be reasonable, whether incurred by users, libraries, or publishers. Arrangements between libraries for free interlibrary loan are common, in part to avoid costly accounting or payment procedures. Recent years have seen a growth in library consortia and third-party services that allow institutions to share the fixed costs associated with negotiating licenses and supporting coherent access to a variety of online resources. It is unlikely that information providers, whether publishers (as in scenario 2) or libraries (as in scenario 1) benefit by limiting access to a resource to subsets of users from an academic institution. The transaction costs of ensuring compliance with such limits will almost certainly exceed any loss of revenue sustained in granting more general access.
The pricing of institutional licenses for electronic resources remains a complex issue that requires further research, perhaps along the lines of the University of Michigan’s PEAK project. Existing models are not wholly satisfactory. Pay-per-view is not acceptable as the standard pricing scheme for libraries acting as intermediaries. Similarly, it may make sense to base prices on a maximum number of simultaneous users when information is accessed via terminal sessions, but not when it is accessed via stateless Web interactions. For large and heterogeneous user populations (such as the entire population of a state), pricing by size of community makes no sense either. Alternative measures of volume are needed as a basis for subscription prices. But what metrics are appropriate and acceptable? Some participants suggested that fruitful analogies might be drawn from pricing schemes for network connections.
Perhaps the strongest message that emerged from this workshop was that whatever the system for managing access, it must be simple. It must be comprehensible and convenient for intermediaries and end users. The emphasis should be on finding ways to reasonably limit abuses and punish abusers rather than complicating life for every user. The system need not be designed to handle every special case but should be able to inform users of nonstandard provisions (such as the complex terms of a gift) without attempting to enforce them. Prototype systems should be developed to handle the majority of routine needs effectively. Publishers appear willing to tolerate a little leakage, if it does not turn into wholesale hemorrhage.
Complexity should be hidden from users, but those who want to know the full details of a complex deed of gift or the reason why access to an item is restricted should be able to find that information. Participants agreed that it is incumbent upon intermediaries (libraries and third-party aggregators) to negotiate simple licenses, with a view to making the management system simple to implement and to explain to users. Several argued that simple licenses benefit providers too, since they are less costly to negotiate and acceptable to a wider range of customers than are more complex licenses.
Systems that are straightforward to implement and easy to use will encourage compliance. Participants argued that is not absolutely necessary for systems designed to manage access to scholarly resources also to handle materials to which access must be limited for reasons of security. In the short term, the aim should be to build a system that operationalizes a few different, simple agreements. The design should be modular, flexible, and have the capacity for growth. Extensions can be made later, on the basis of practical experience.
6 Report to the Commissioner on the Conclusion of the First Phase of the Conference on Fair Use, U.S. Patents and Trademarks Office, September 1997. Available at http://www1.uspto.gov/web/offices/dcom/olia/confu/conclutoc.html.
7 JSTOR Library License Agreement. Available at http://www.jstor.org/about/license.html.