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Enabling Access in Digital Libraries: Unanticipated Issues

Where do authors fit in?

As pointed out in the final plenary discussion session, the instructions for the breakout discussions omitted an important topic: the rights and perspectives of authors. In the end, it was decided that the relationship between authors, publishers, and users was too complex to bring into the discussion, and that a separate session would be needed to represent the perspective of authors. During the discussion, several points were made. Some participants argued that authors are both the ultimate information providers and, at least for scholarly journals, also the ultimate users. Faculty researchers must be educated to think twice about assigning all rights for articles to publishers, given the costs university libraries must bear in buying back the right to access the content and other barriers to broad access that publishers might wish to impose.

Other participants pointed out that the apparent equivalence between users and authors mentioned above is simplistic and demonstrates an American viewpoint rather than a global perspective. Legally, the rights of authors are very different from the privileges of users. In many other countries, authors retain moral rights even when they assign copyright to publishers; in some countries, they may not waive those rights. In Europe, authors have made their voices heard in objections to attempted agreements between libraries and publishers. Groups representing authors are working to use the technology to enforce their own rights, for instance by supporting the development of digital watermarking technology. In the United Kingdom, the Authors’ Licensing and Collecting Society (ALCS) is adamantly opposed to the U.S. concept of fair use.

What about unaffiliated individuals and small institutions?

Scenario 1 highlights the fact that most academic libraries consider their services to unaffiliated individuals-the general public-an important component of their mission. For the Library of Congress and the New York Public Library, the provision of unfettered access to digitized collections is essential. Likewise, many state university libraries are required by law to provide service to unaffiliated users.

Increasingly, consortial and outreach activities undertaken by universities require academic libraries to provide services to smaller, less well-endowed institutions, such as K-12 schools, that do not have the technical infrastructure to provide authentication services. Institutions may wish to provide access to resources for which the library may not legally provide general access, but for which rights holders have granted permission for educational use. To facilitate access to such materials from schools and public libraries, the Library of Congress has considered establishing a site-license arrangement (at little or no charge). It lacks the technology and resources, however, to implement such a scheme nationwide, because these institutions lack the necessary technical infrastructure. Even the simple application of IP source filtering is not feasible, since many small organizations do not have permanent IP addresses, but obtain them dynamically from Internet Service Providers each time they establish a connection. Clearly, state or local government agencies, consortia, or other third-party organizations must ensure that basic, uniform authentication and authorization services are available for small institutions and unaffiliated users.

Accommodating change

As pointed out earlier, the external legal, economic, and social framework in which access management schemes operate will change over time. Systems must be able to adapt to such changes if they are to succeed. The need for such flexibility may determine how best to represent rights or responsibilities within metadata associated with digital material and as rules implemented within access management systems. System designers should take nothing for granted: even status transitions that appear to be predictable-as in the case of expiration dates for copyrights held by corporate bodies or by creators who have died-are not certain, as current legislative recommendations to extend the period of copyright demonstrate (see appendix C). Furthermore, they must be prepared for changes of global dimensions: when photocopiers were introduced, copyright laws around the world were modified. Similarly, electronic publishing and network technology will disrupt the delicate balance between enabling creativity and inhibiting theft of intellectual property. As this effect is better understood, more changes to copyright laws are inevitable.

Two other notable trends in the external environment in recent years are creating further challenges for the design and deployment of access management systems. The growing phenomenon of distance learning in many universities leads to pressure for remote access to more library services in order to serve the expanded student body. Libraries are also establishing consortia to share the costs of licensing or of mounting electronic resources. For multicampus institutions, new centralized organizations may be formed to serve this role. For libraries without campus-based authentication systems, the consortia may provide authentication and proxy services. Access management schemes must be adaptable to a variety of third-party intermediate arrangements and changes in license agreements.

Widespread adoption of technology will undoubtedly stimulate further change. Access management systems must adapt to rights regimes around the world as global access to information becomes feasible from more countries. The scope of publications considered during tenure review is also likely to change. One participant urged the community represented in the room to persuade university presidents that the tenure process is possible without paying exorbitant sums to publishers. Whether or not they are persuaded, the growing importance of the “grey” literature (such as electronic preprints) in some disciplines will undoubtedly affect the perspective of both users and scholarly publishers.

Accommodating ambiguity

The 1996 workshop on Technology of Terms and Conditions revealed the ambiguities and uncertainties inherent in copyright and related law. Systems developers were surprised to learn that laws often allow for flexible interpretations (in other words, are intentionally ambiguous), with the expectation that different interpretations will be tested in the courts and evaluated in the light of practical experience and other laws. Workshop participants devoted considerable attention to the ambiguities that might affect the design of access management systems, most of which have already been noted in this report but merit repeating.

License agreements can clarify some ambiguities, but not others. The rights pertaining to the historical materials Digital Library Federation members may propose to digitize for the Making of America project, for instance, may be impossible to ascertain. The moral rights of authors (in countries that recognize such rights) are not usually reflected in license agreements between libraries and publishers. Economic constraints may prevent publishers from establishing unambiguously the rights associated with illustrations and other subcomponents in old publications that are now being made available in electronic form. Like the participants in the Making of America project, they must find a way to assess and manage the risk. The original creators may or may not be interested in asserting any rights, depending on the age and nature of the works, the purpose of the use, and the current commercial viability of the works.

Another ambiguity relates to exceptions and limitations to intellectual property rights afforded by laws. Exceptions are usually based on the purpose of use and its effects on any market for the protected work. At the point at which access is controlled, users may not even know how they propose to use the work (beyond ascertaining whether it is of interest at all). In the view of workshop participants, it would be unreasonable and an invasion of privacy to require users to declare why they were accessing a work. A case in point might be researchers who are unwilling to explain their interest in a particular research topic when preparing a grant proposal or in existing patents in an area in which they have developed patentable technology. Users searching MEDLINE to research a serious medical condition may not wish to disclose that they or a family member have health problems. There is no way to enforce the fair use provisions of U.S. copyright law on the basis of characteristics of users. Each case is judged on its merits.

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