Rights for Electronic Access to
and Delivery of Information (READI) Project

Draft Preliminary Findings

Appendicies

Appendix A: Findings--Buyers Panel

Defining The User

Can one formulate a comprehensive definition of "user"?

Buyers identified two "user" environments--one in which the buyer and user are the same (or "ultimate user") and the other in which the buyer acts as agent for the user (a library, for example). For the sake of discussion, panelists defined the "ultimate user" as "that individual who has interest in the intrinsic and unique content of the information for their use."

According to this group, in an arrangement where the buyer acts as agent, the buyer is responsible for notifying and attempting to educate users as to the rights and conditions defined in the contract. The buyer neither defends, is responsible for, nor is liable for violations of the agreement made by the user. Participants recognized that this definition is applicable only in one of many different situations and may or may not be appropriate in others.

Panelists identified these individuals as "users":

• "Ultimate user" (instances where buyer and user are the same)

• Buyer as the agent for the user (a library, for example)

Parties To Agreements

In any agreement there are at least two parties. Members of the panels were asked to identify which parties might be noted in a generalized formulation covering networked information. Panelists were also asked whether such parties should be actually identified by title or function in any standard form.

Panelists acknowledged that in the new networked information environment, buyers and sellers were no longer stable entities, with a simple "seller" selling and a "consumer" buying information as in the classic print model. As information passes from one entity to another along the chain from original creator to ultimate user in the networked environment, sellers sell to intermediaries who themselves turn into sellers as they resell or redistribute information. Nevertheless, panelists accepted the notion that while buyers could also act as sellers, depending upon their role in the chain, at the moment one enters into an agreement one must assume one role or the other--either as "buyer" or as "seller."

Panelists also introduced the concept of the "public good" (or "public policy") as a necessary third party, a presence or context that was required to ensure broad access to information and to provide for wider societal needs than would be achieved in a simple commercial exchange between suppliers and consumers only.

Each group identified various "parties" whose interests require representation in any network agreement. Listed below are the "parties" recognized by the buyers group:

• Library users

• Seller or provider (the person or institution who decides how to spend the money)

• Broker or intermediary

• Public interest (as third party or as the context within which an agreement is developed/implemented)

• Librarians

Parties Signing Agreements

Since all commercial agreements are signed by those with authority to do so, the groups were asked who might have the authority within organizations that supply and consume networked information to sign such agreements. Furthermore, should such titles or job descriptions be identified in a generalized formulation?

Participants did not address the question as to who had the authority to sign an agreement. The previous discussion, in which the volatility of the buyer-seller relationship was revealed, indicated that panelists believed it was unnecessary.

Panelists in each group identified those who they felt had the authority to enter into such agreements:

• Not necessary in a generalized formulation

Parties Implementing Agreements

Once an agreement between sellers and buyers of networked information has been signed, someone within each organization must be assigned to implement its terms and conditions. Panelists were asked to identify those assigned the task of implementing such agreements. Once noted, should they be specifically identified in contracts?

Participants in the buyers panel recommended that job titles of those who implement contracts not be mentioned in agreements. They recommended that identification of such officers remain an open term. They did suggest, however, that a socially responsible person or entity be assigned the task of implementing terms and conditions in the interest of the "public good."

Panelists identified these individuals as implementors:

• Head of purchasing

• Legal counsel

• University librarian/librarian

• Computer center director

• Individuals

• Dean

• Broker

• Intermediary

• Consortia

• University computer store owner

Defining The Network

What is the network? Should a general formulation include a reference to the network? If so, how would it be defined?

Since participating buyers felt that the network (however it was defined) needed to be regulated in the public interest, the contracting parties should define the regulating guidelines. Either network providers, buyers, or the agents of both sellers/buyers should negotiate what is "acceptable use." The discussion then turned to the fact that the distinction between what proprietary and public information is unclear. For example, a seller may own rights to the text of a work, but may or may not own rights to tables, charts and graphs for the work. For this reason buyers felt it necessary to provide regulations/standards in any general formulation.

The group defined a network as "the physical structure upon which a system of communication resides. It would include proprietary networks and networks that function in the public interest." Alternatively, they suggested a network could be defined as "a system of distributing electronic information."

Panelists identified these examples of networks:

• Telephone system

• Cable television

• Post office

• Highway system

• Physical network (wires, etc.)

• Economic network (cooperative of entities)

• Hardware and software

• People

• A set of services

Mechanisms Of Use

Each group was asked if it felt that "mechanisms of use" could be defined in a general way. Included in mechanisms of use are delivery systems, software, hardware, and the user interface, among other elements. If mechanisms of use are important, how should they be defined?

On the whole, participants agreed that buyers and sellers should adhere to a set of agreed-upon standards. However, one panelist representing an intermediary mentioned that "standards" can be a feature of network products and are frequently market-driven. New technologies (user interfaces, for example) are constantly being developed to better serve the market. To include a narrow, standard definition would inhibit the introduction of new products and product development.

Nonetheless, it was agreed that a set of minimum acceptable "standards" covering format/presentation of information could be part of any agreement when institutions/individuals require them.

This analysis lead to a discussion of "what is information"? A general definition of information was developed: "aggregate bits of data/images that convey meaning." In their estimation, the generalized formulation needs to account for the two elements being sold with regard to electronic information--information (data) and display or delivery mechanism (search engine, etc.).

Copyright

We asked panelists in each session what their primary concerns were regarding copyright and copyright infringement. We also asked, how they thought copyright should be addressed under a general formulation, if at all?

Panelists were primarily concerned about whether creators of knowledge in the network environment are appropriately compensated. They noted that there are many methods of compensation--money, respect, citations, etc. The network environment introduces the difficulty of authenticating what is original and apportioning credit to the creator/seller. While modifications and value-added works in many instances create new formulations, such additions or changes need to be identified as different from the original work.

Two views emerged: One concluded that the change in the creation and delivery of information over the network altered the concept of copyright completely and made it obsolete. The other held that the basic principles embodied in the copyright law are sufficiently commodious and durable so that they can be adapted to changing technology.

A number of members in the buyers panel argued that "fair use" serves to provide a check on absolute proprietary rights, serving a useful balancing function in the public interest. Many were reluctant to define "fair use" rights in a contract, regarding law and precedent as superior. Still, most found that it was unacceptable to eliminate "fair use" from a general formulation. Buyers were concerned that the privileges guaranteed by "fair use" would be lost during contract negotiation, unless they were included in a general formulation.

Unauthorized Use

A list of unauthorized uses was developed in the buyers panel and later discussed by the sellers panel as a method through which two parties might successfully negotiate a contract in the networked environment. The issue was not part of the original script, but emerged from discussions of copyright and fair use.

In anticipation of rapidly evolving (and market-driven) technological capabilities in the networked environment, participants decided to list unauthorized uses, rather than attempting to determine all the possible present and future authorized uses of networked information. Definitions of unauthorized uses should be restricted to basic concerns that are enforceable in the context of the current networked environment. In a generalized formulation, anything not considered an unauthorized use was therefore authorized. Buyers recommended that any contract should include a provision for the regular review and evaluation of new and emerging technologies by the parties to the agreement. The agreement would then be revised to adapt to these changes.

Buyers also felt that they were neither able (nor required) to monitor or to control completely end-user copyright violations. Librarians, in particular, felt that their obligations were limited to posting notice of copyright restrictions and attempting to educate users about copyright policies. Librarians did not see themselves as liable for end-user copyright infractions. To the best of their ability, librarians would prevent electronic copyright infringement by users (including the education of users to copyright terms and conditions), but they did not wish contracts to stipulate duties beyond their current capabilities or beyond current legal precedents.

Buyers identified two examples of unauthorized uses: reselling exact copies without fees/compensation for service returned to seller, and misrepresenting/degrading the integrity of the information. With respect to the technical and legal difficulties of authorization to reproduce from an electronic network in the context of "fair use," they proposed that a general formulation include a provision to limit uncompensated reproduction beyond "x" units.

Guaranteed Print Subscriptions / Photocopying / Fees

Panelists were asked whether a generalized formulation should address bundling of electronic rights with the maintenance of a print subscription and if so, how such an arrangement would be structured. Should photocopying (making printed copies from printed versions) be included? Is it possible to create a standard fee structure? If so, how would it work?

Participants in the buyers panel felt strongly that print subscriptions and issues regarding photocopying (printed copies from printed copies) should not be associated with electronic products and formats in a generalized formulation.

When discussion turned to pricing (fees) structures, buyers felt strongly that agreements should be on a subscription basis. Predictability (the need to budget electronic resources and responsibilities for the coming year) was of primary concern to librarians.

The term of the contract was also discussed. Again, using a subscription-based model, buyers recommended a minimum of one year or longer. Some of the smaller libraries voiced a concern that they could not afford to pay for subscription databases. Instead, they preferred that a general formulation include an option for fee-for-service arrangements. An acceptable compromise was developed to permit access to needed information through an intermediary (broker access). Panelists suggested that an annual subscription should incorporate a unit of measure defined by the number of simultaneous users. However, the specific measurement and monitoring of access at the individual level should not necessarily be made available to the seller, given the librarians' concerns for patron confidentiality.

Monitoring / Record Keeping

From their experience, we asked what panelist system of monitoring usage worked best. What were the advantages and disadvantages of the recommended monitoring methods? They were also asked whether a general formulation should specify a monitoring system. Participants discussed how use is recorded currently in their networked environment and how they would like to see records kept to track usage and base payment to rights holders.

Although monitoring usage is necessary to enforce the terms of a contract, the buyers panel reasoned that since sellers know their hardware and software intimately, it was more sensible that sellers be required to create systems and mechanisms for monitoring their own databases. Few buyers believed they would know how to develop monitoring systems for another organization's database as well as the seller would. Buyers insisted that they had a shared interest with sellers on this issue and that both sides must be well informed of usage in the marketplace. Buyers were particularly concerned that a confidentially clause be included in any generalized formulation to protect individual end-user anonymity. It was suggested that buyers and sellers work together and share information (data points) without revealing the personal identities of users or their search contents. Buyers generally felt that both parties were bound by state laws that govern the confidentiality of library records.

The buyers panel identified two record-keeping, monitoring methods: Passwords or numbers and personal ID (student ID or social security numbers).

License Termination And Expiration / Enforceability / Disputes

Participants were asked what should happen to the property when an agreement is terminated or expires and whether this eventuality should be addressed in a general formulation? In addition, under what laws are the agreements enforceable and how should disputes be settled?

Participants believed that, ideally, an agreement's termination should be left open to negotiation. Should a given subscription-based agreement be terminated or expire, buyers would like the ability--through some mechanism--to continue accessing information on a fee-for-use basis.

To clarify the basis on which they view delivery of and access to work, they separated electronic information into three types:

• CD-ROM and other physical components (tapes, etc.)

• Online information available for downloading

• Online services accessed on demand (i.e., the typical online service)

Buyers stated their willingness to pay different prices for items in different forms. They also indicated that when they wished to own something, they were prepared to pay extra for that ability. Therefore, if applicable, contracts should make provision for either ownership or lease. Additionally, buyers expressed interest in having contracts address the possibility of a system which would allow or fund public access to information.

Due to the lag in state law covering networked information, many state laws do not address such questions adequately. Therefore, respondents felt this issue should be addressed in a different forum, although no alternative forum was identified.

Participants felt that binding arbitration was the best method of solving disputes between sellers and buyers of information.

Rights Holders Organizations/Rights Brokering Organizations

In light of all the issues discussed during the panel sessions, participants were asked to turn their attention to one aspect of the READI Project which currently is not being actively developed, but which continues to be of interest to the Coalition's leadership. Under the original READI Project concept, two organizations--a Rights Holders Organization representing sellers, and an Rights Brokering Organization representing buyers--would be formed and empowered to negotiate on behalf of the groups they represent.

Buyers panel participants pointed out one important limitation of an RBO would be that many libraries are state-run or state-funded and therefore must buy materials through competitive bids. They are not permitted to delegate purchasing authority to outside agencies.

Assuming membership was not necessarily obligatory, buyers were asked to develop a list of the advantages and disadvantages they could foresee in the creation of an RBO: When the thirteen participants were polled, ten stated they would consider joining the RBO; three would not.

RBO Advantages

• Quantify and anticipate the marketplace (exhibit the potential market to the vending industry)

• Regularize and rationalize the industry

• Consolidated bargaining power might otherwise be unavailable to smaller institutions

• Hire technical, legal, and administrative expertise too costly for some institutions

• Spur innovation and new technology by increasing the numbers of potential markets

• Price discounts and quantity discounts

• Develop standards

• Promote ethics and public policy

• Lobby and influence legislation

RBO Disadvantages

• Membership not representative of marketplace (if it only attracts small buyers or is unavailable to state institutions)

• Difficult to monitor and trust

• Added costs and bureaucracy

• Organization may become a captive of the sellers

• Inflexibility

• Dominance and circumvention by major players

• Slow down negotiation and administrative processes

• Participating buyers could lose autonomy and independence

Most Important And Unanswered Questions

At the end of the session, all participants were asked which items discussed during the session they were most committed to protecting. Those in the buyers panel who responded mentioned that the public good must be served, that user confidentially and the content of their searches should be kept confidential, and that the rights established through interpretation of "fair use" be preserved in the networked environment.

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Appendix B: Findings--Sellers Panel

Defining The User

Can one formulate a comprehensive definition of "user"?

The terms "ultimate user" and "intermediary user" were discussed. To these participants, the difference between individuals (ultimate users) and entities (users) emerged as a critical concept. Most sellers present had difficulty accepting the statement from buyers that the library represented the interests of users. Most felt that libraries did many things--provide and distribute information, catalog, archive and provide many other valuable services, but do not represent their patrons/user interests.

Sellers did not wish to be forced to have an intermediary between them and their ultimate user--especially in cases where they have no preexisting electronic link to those users. Where sellers have a direct electronic link with users, they wish it to remain. The primary reason given was that sellers did not want to be removed at arms length from their customers. Many sellers agreed that general definition of the user was impractical, except in the context of a specific contract, and was inseparable from the rights and obligations conferred to them by that contract.

Panelists identified these individuals as "users":

• Account holder

• Member of the group

• Patron

• Client

• Individual

• Valid sites

• Reader

• Player

• Listener

• Student

Parties To Agreements

In any agreement there are at least two parties. Members of the panel were asked to identify which parties might be noted in a generalized formulation covering networked information. Panelists were also asked whether such parties should be actually identified by title or function in any standard form.

Sellers agreed that buyers and sellers could exchange roles, depending on their place in the information-exchange chain. Panelists concluded, just as in the buyers panel, that one could still reduce the parties to "buyers" and "sellers," even if ownership were transferred from one party to another along the chain from original creator to ultimate user. When members of the panel were shown the model created by the buyers panel--that is, two parties: buyers vs. sellers in the context of the "public interest"--owners generally agreed that it was acceptable, but modified it slightly, with "legal regime" replacing "public interest," basing the context on law rather than on societal need. Some panelists were concerned about the role of so-called "intermediaries"--those who broker information from original sellers to eventual consumers. They feared that intermediaries would stand in the way of direct access to users on which they believe their business depends.

Each group identified various "parties" whose interests require representation in any network agreement. Listed below are the "parties" recognized by the sellers group:

• Rights holder or Author

• Network provider

• Users

• Value-added resellers

Parties Signing Agreements

Since all commercial agreements are signed by those with authority to do so, the groups were asked who might have the authority within organizations that supply and consume networked information to sign such agreements. Furthermore, should such titles or job descriptions be identified in a generalized formulation?

Participant's held a short discussion of the characteristics of those with authority to sign the agreement. Of particular interest was a discussion regarding the confusion (on the part of buyers and sellers) as to what is and is not actually owned by a seller of information (specifically, what rights they are able to transfer, as opposed to ownership of the information). This review prompted a discussion (not on the script) regarding the nature of "ownership." Sellers stated that there should be a provision in any contract for a definition of ownership. Most felt more comfortable with having the items and seller rights pertaining to them described in the contract. For example, a given contract might define "electronic media" as "the works defined in Exhibit, A, that are transferred via X (X being the delivery mechanism)." Sellers supported the notion that buyers had an obligation to display the limitations imposed on their users as to the extent of use--either in a standard copyright notice or in some other language--to insure that copyright guidelines are being followed.

In the end, this group adopted a traditional publishing model where one party represents that it owns certain rights and another purchases them.

Panelists in each group identified those who they felt had the authority to enter into such agreements:

• Authorities with ownership (assuming actual ownership of rights claimed)

• Corporate officers

• Authors and author representatives

• Ownership should be defined in any general formulation

Parties Implementing Agreements

Once an agreement between sellers and buyers of networked information has been signed, someone within each organization must be assigned to implement its terms and conditions. Panelists were asked to identify those assigned the task of implementing such agreements. Once noted, should they be specifically identified in contracts?

Sellers listed various titles of those within their own organizations responsible for implementing existing contracts; nevertheless, they failed to reach a consensus about whether a specific officer should be identified. However, some panelists did suggest that on the buyers side, there should be an individual, entity, or mechanism to monitor usage and compliance.

Panelists identified these individuals as implementors:

• Project manager

• Editorial manager

• Marketing manager

• Product manager

• Subsidiary-rights manager

• Agents

• Attorneys

• Creator/Author

• Executive officer

• Vice president of publisher relations

• Copyright director

• Publisher

• Software manager

Defining The Network

What is the network? Should a general formulation include a reference to the network? If so, how would it be defined?

Participants concluded that a detailed definition of the network should be included in the "definition of terms" section of any agreement.

Panelists identified these examples of networks:

• Commercial

• Local area network (LAN)

• Mechanism for redistributing materials

Mechanisms Of Use

Each group was asked if it felt that "mechanisms of use" could be defined in a general way. Included in mechanisms of use are delivery systems, software, hardware, and the user interface, among other elements. If mechanisms of use are important, how should they be defined?

Two viewpoints about mechanisms of use emerged among members of the sellers panel. One suggested that an agreement be very explicit, specifically defining the platform on which information is being transmitted (perhaps in the "Exhibits" section) and carefully identifying the precise rights that the contract was not transferring (rather than a blanket agreement--covering all electronic products and video, for example). The other view held that it would be best to define mechanisms broadly to encompass all new technologies eventually. All participants agreed, however, that as technology moved ahead, so should the language of the contract. Agreements should be flexible enough to be revised as needed to embrace new technologies/applications as they emerge.

Copyright

We asked panelists in each session what their primary concerns were regarding copyright and copyright infringement. We also asked, how they thought copyright should be addressed under a general formulation, if at all?

According to members of the sellers panel, simple rules of copyright, permissions and apportioning credit for wholly owned works become far more complicated in the network environment because most forms of information distributed over networks consist of collections of works created by many sellers (individuals and entities). Certain distribution and reproduction rights may still be held by the original sellers. For example, one panelist pointed out that permission to reproduce the text of a work doesn't necessarily grant rights to the charts, tables, images, etc. Furthermore, sellers asserted that the granting of rights to reproduce text and charts/tables in print does not necessarily extend to electronic distribution, unless the agreement is either sufficiently general or specific to include it. Initially, sellers wanted a provision that would define a minimum copyrightable segment of a work. Several panelists emphasized the importance of being able to attach credit to an author's (or seller's) work (or any portion thereof that falls within the minimum copyrightable segment) so it may be tracked and its integrity upheld.

Most sellers indicated that the publisher/seller identifies those rights it wishes to license: the buyer then acknowledges their copyright ownership of those rights. However, panelists wanted contracts to include the buyers obligation to provide notice to the seller of potential infringement in a timely manner, say, within 30 days.

Most sellers made the distinction between what they termed "innocent" infringement (cases where information was unknowingly obtained over the network without permissions) and "blatant" copyright breaches. They were far more interested in the latter.

Unauthorized Use

A list of unauthorized uses was developed in the buyers panel and later discussed by the sellers panel as a method through which two parties might successfully negotiate a contract in the networked environment. The issue was not part of the original script, but emerged from discussions of copyright and fair use.

The sellers argued that since the end-user (or ultimate user) is not usually a signatory, the end-user cannot be bound by the contract's terms. The sellers only recourse is to address unauthorized use through the buyer or intermediary agent. Sellers felt that responsibility to notify, monitor and educate end-users regarding terms and conditions, limitations and permitted and prohibited uses of the network should fall on the buyer. In addition, many participants felt that where the buyer (a library, for example) is proven to be negligent in enforcing (or failing to enforce) the terms and conditions of the contract, that buyer should be held responsible. Some panelists expressed a preference that buyers take an active role at least in notifying sellers of potential infringement, if not aiding in their prosecution. In their view, the buyer has the responsibility to enforce the agreement because direct seller contact with the user is limited--a situation obviously not highly regarded by the sellers of information.

Redistribution, authorial rights and economic rights, franchise rights, posting proper guidelines, and the definition of obligations of buyers and sellers are issues of great concern to sellers of information and panelists agreed they should be addressed in a general formulation. Sellers would like buyers to provide notice of potential copyright infringement in a timely manner (30 days) and support the rights holder in the pursuit of the violator. Generally, sellers felt that all derived copies were subject to a fee--whether the seller enforced that fee was up to them. They did not feel that the buyers suggestion of specifying limits to the number of uncompensated copies was a solution to their concerns for the broad definitions of "fair use."

Guaranteed Print Subscriptions / Photocopying / Fees

Panelists were asked whether a generalized formulation should address bundling of electronic rights with the maintenance of a print subscription and if so, how such an arrangement would be structured. Should photocopying (making printed copies from printed versions) be included? Is it possible to create a standard fee structure? If so, how would it work?

Sellers wished to keep the option of print bundling available to them. While they did not pursue the issue in depth, there was some indication that their concern was based on publisher interests in maintaining print versions as a viable alternative in the electronic future.

As mentioned previously, rights to reproduce copies without fee up to a certain unit ("x") was proposed by the buyers panel and wholly rejected by the sellers panel. Sellers said that additional copying (print or electronic) is unauthorized, without contractual permission. Instead, sellers proposed if it were possible to create a generalized formulation it should include and define specific licenses and grants, and restrictions of use, including a display clause. A royalty section would cover seller compensation.

Sellers developed a series of phrases as examples of acceptable terms relating to licenses and grants: "a limited, perpetual, worldwide license to do the following: distribute over the Internet works that are described in Exhibit A." Suggested examples of restrictions on use included: "restricted from distributing beyond the Internet, beyond x users, to the faculty, or to x." If the general formulation includes a display clause, not only the right to reproduce the material should be defined, but also the right to display it and the minimum standards that should be adhered to (e.g., low or high resolution screens). In addition, the minimum permissible unit of reproduction should be defined and incorporated into a general formulation. Sellers suggested that if applicable, an article be the minimum standard unit.

Royalties would be addressed in a separate section of the agreement. As a sample phrase, panelists suggested, "the licensee shall pay the licensor royalties at a rate of x [money or some other form of compensation] for x [each copy, or by run time, or by some other unit of measure]."

Recognizing that not all parties may be able to come to an agreement on specific terms for compensation, one seller mentioned that he had developed contracts in which the document states that the two parties feel differently on an issue and the contract remains silent as to which one is in effect--while both sides agree to pay "x" for "x" (as above). Sellers participating in this session felt they should control the right to browse their database. Individually, they may decide not to enforce it, yet they assert that it is within their rights to decide when.

Sellers created a list of general restrictions they wished to define and impose on use in any contract:

• all rights which they did not wish to license, plus anything not yet addressed in the contract at the time;

• who may access the information;

• on what network it may be used;

• minimum unit of measure;

• whether measurements are made in terms of number of machines (terminals) or number of people with access;

• reserved rights (all rights not granted are reserved);

• maximum unit size of an item;

• not for resale purposes;

• not for collective works;

• downloading, electronic transmission;

• any other value-added function.

Sellers were not in complete agreement about the inclusion of blanket restrictions on indexing and abstracting. They recognized indexing may or may not be a restricted use, since there are many levels to the activity. Some forms of indexing should be permitted. Some levels of abstracting may also be permissible and to the advantage of both seller and buyer.

When the discussion turned to fees, most sellers felt that fee structures should be determined by the marketplace. They preferred individualized price structures, formed in the context of the database or work in question, rather than what was seen as an artificial attempt to create a universal pricing method for a general formulation. While many panelists foresaw the day when a standard, universal pricing model would be developed, they did not feel that costs and profit models in the current network environment were sufficiently settled. For the purpose of a generalized formulation, they suggested that many pricing options be recognized and defined, and that a checklist be developed to enable both parties to recognize which model would be most appropriate for the work in question.

Monitoring/Record Keeping

From their experience, we asked what panelist system of monitoring usage worked best. What were the advantages and disadvantages of the recommended monitoring methods? They were also asked whether a general formulation should specify a monitoring system. Participants discussed how use is recorded currently in their networked environment and how they would like to see records kept to track usage and base payment to rights holders.

For marketing and market feedback, sellers wanted the ability to measure all access to their databases, including access to the names of users and the contents of their searches. Realistically, they accepted that neither type of information was likely to be granted in the near future--if at all. As an alternative, it was suggested that some of this information might be gained through rental of mailing lists of document-delivery service customers. While sellers did not object to the separation of search content and individual identifications from the other monitoring data, they wanted assurance that contracts would not permit buyers (libraries, for example) to provide that information to anyone else.

License Termination And Expiration / Enforceability / Disputes

Participants were asked what should happen to the property when an agreement is terminated or expires and whether this eventuality should be addressed in a general formulation? In addition, under what laws are the agreements enforceable and how should disputes be settled?

In actual cases where networked agreements have expired (or have been terminated), some sellers have agreed to hold print copies of the work aside and deliver them to the buyer upon termination of contracts. Sellers felt that this approach was an equitable solution since the buyer would lose the benefits of electronic access yet still retain the print version (similar to what occurs when a library cancels a print subscription). Sellers view CD-ROM (and other "hard" media) as no different from remotely held networked information, with sellers retaining rights to recall information at termination of the contract. Sellers view information in electronic form as "leased," not "purchased."

Many sellers reported writing agreements which were enforceable in the state of the seller. Under certain circumstances, they recognized that the rights holder may wish to retain the option to decide which state to have the terms and conditions of the contract enforced.

As in the buyers session, sellers felt that an arbitration arrangement was the best way to handle disputes. Some cautioned that arbitration may not fall within the corporate policies of some institutions and that if it were possible to establish a general formulation it should remind parties to submit the provision's inclusion for approval.

Rights Holders Organizations / Rights Brokering Organizations

In light of all the issues discussed during the panel sessions, participants were asked to turn their attention to one aspect of the READI Project which currently is not being actively developed, but which continues to be of interest to the Coalition's leadership. Under the original READI Project concept, two organizations--a Rights Holders Organization representing sellers, and an Rights Brokering Organization representing buyers--would be formed and empowered to negotiate on behalf of the groups they represent.

One panelist immediately pointed out that the major international associates of publishers have publicly opposed the involvement of any rights collection agency in this field.

While an RHO/RBO relationship may not be the answer to the issues discussed in their session, some sellers restated their commitment to finding an improved way to address the collection of fees and distribution of information in the electronic world.

When panelists were asked to list benefits and drawbacks to creating an RHO, they noted the following:

RHO Advantages

• Improved policing

• Improved and more complete fee collection

• Ability to profile/identify users more efficiently (data collection)

RHO Disadvantages

• Position of organization (loss of publisher neutrality)

• Economic issues assumed by an RHO are too great for publishers not to control

• Sellers are removed from marketplace

• Loss of autonomy

Of the twelve sellers and intermediaries present, only one would join an RHO, six would not and five were uncertain.

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Appendix C: Findings--Mixed Panel

Defining The User

Can one formulate a comprehensive definition of "user"?

In the mixed group, participants felt that each contract between sellers and buyers would define the user. According to these panelists, use drives agreements. Defining the user in a generalized formulation is unworkable. Still, the group emerged with a revised statement (the original language of which had been created by the buyers panel): "The buyer is responsible for notifying and attempting to educate users of the rights and conditions, including intended or authorized use of information as defined in the contract. Buyer neither defends, is responsible for, nor is liable for violations of the agreement made by the user."

Panelists identified these individuals as "users":

• Library client

• Faculty

• Student

• Library

• Individual

• Anyone who logs-on and searches for information, including groups or entities

• Simultaneous users

• Total number of users

• Vendor

• Author

• Public user

• Private user

• Corporation

• Primary user

• Secondary user

• Consumer of information

• Unintended user

• Limited user

• Unlimited user

• Potential user

• End-user

• Intended user

• Actual user

Parties To Agreements

In any agreement there are at least two parties. Members of the panel were asked to identify which parties might be noted in a generalized formulation covering networked information. Panelists were also asked whether such parties should be actually identified by title or function in any standard form.

The models illustrating the buyer-seller relationship, created in the two previous sessions, were presented to the group. Certain participants suggested that "supply" and "demand" were more appropriate than "buyer" and "seller," since these terms provide for the exchange of monies as well as other considerations. Most, however, agreed to accept the "buyer-seller" model.

Each group identified various "parties" whose interests require representation in any network agreement. Listed below are the "parties" recognized by the mixed group:

• Publisher or producer

• Vendors and buyers

• Creators

• End-users

• Authorizing agencies

• Distributors

• Packagers

• Formatters

• Designers

• Mediators

• Catalogers

• Agents

• Consortia

• Editors

• Censors

Parties Signing Agreements

Since all commercial agreements are signed by those with authority to do so, the groups were asked who might have the authority within organizations that supply and consume networked information to sign such agreements. Furthermore, should such titles or job descriptions be identified in a generalized formulation?

Participants covered many issues reviewed in the sellers panel. Ownership was also discussed, but in the context of competency (do parties actually own what they claim to own)--similar to a discussion in the sellers panel.

In the end, the mixed group also adopted a traditional publishing model, similar to the views expressed in the sellers session.

Panelists in each group identified those who they felt had the authority to enter into such agreements:

• Felt that the authorities varied so much, they did not warrant definition

• Felt that competency (within the context of "do they own the rights they represent they own") is most important

Parties Implementing Agreements

Once an agreement between sellers and buyers of networked information has been signed, someone within each organization must be assigned to implement its terms and conditions. Panelists were asked to identify those assigned the task of implementing such agreements. Once noted, should they be specifically identified in contracts?

After being shown lists of candidates identified by previous groups, panelists agreed that further discussion was unwarranted. Members felt that a general contract should not specify who is responsible; however, specific agreements should allow for a provision in which the parties identify appropriate contract officers.

Panelists identified these individuals as implementors:

• Felt that the previous panels covered this question well and did not need to elaborate further

Defining The Network

What is the network? Should a general formulation include a reference to the network? If so, how would it be defined?

Owing to lack of time, the mixed panel agreed not to consider the question defining the network.

Mechanisms Of Use

Each group was asked if it felt that "mechanisms of use" could be defined in a general way. Included in mechanisms of use are delivery systems, software, hardware, and the user interface, among other elements. If mechanisms of use are important, how should they be defined?

Lack of time prevented panelists from addressing this question.

Copyright

We asked panelists in each session what their primary concerns were regarding copyright and copyright infringement. We also asked, how they thought copyright should be addressed under a general formulation, if at all?

Many participants (especially sellers) felt uneasy about copyright law and have turned to contract law as a method of addressing the ambiguities of copyright law.

Others (mainly buyers) were wary about sellers desire to engage them in contractual obligations more restrictive than those contained in historical copyright law, forcing them to assume additional responsibilities other than those copyright law required. A brief survey around the table indicated that "fair use" was more widely applicable in the public sector--private sector participants appeared to have turned to contract law already. In refining the distinction between "fair use" and "unauthorized use," some sellers indicated a preference for the term "uncompensated use" rather than "unauthorized use" since it identified a distinction between permission to use a work and compensation given to a seller to use it.

When the discussion turned to copying, most publishers felt that digitizing information in any form was an "unauthorized use," while buyers could foresee instances where digitizing information could fall within "fair use" parameters (for preservation purposes on a local network, for example). Buyers did not wish to make lists of things they could and could not do with information in a general formulation or in any specific contract. A long discussion ensued wherein one panelist rightly pointed out that the purchase of a print product is not accompanied by a contract that says, "you've bought this book and you may read it." She questioned why she should accept acknowledgement of her rights from a seller when they are hers to begin with. Instead, buyers wanted a clear understanding of their rights with regard to the use of data--to avoid grey areas. Some sellers, on the other hand, wished for a system in which a buyer could literally sign a contract online (agreeing to a standard set of terms and conditions set up for each database). They did not wish to see a generalized formulation forcing all negotiations through a library or other intermediary (removing themselves from the market).

Sellers acknowledged that certain information falls within public domain. However in the electronic world, with each packaging and repackaging of that information, the seller or publisher has added value to it and should be compensated for value added. In circumstances involving electronic distribution of information, buyers acknowledged that they are prepared to pay for added value, but not for data in public domain.

Unauthorized Use

A list of unauthorized uses was developed in the buyers panel and later discussed by the sellers panel as a method through which two parties might successfully negotiate a contract in the networked environment. The issue was not part of the original script, but emerged from discussions of copyright and fair use.

Some members of the panel felt that the formulation of a contract was affected by the important difference in context of use--that is whether the information would be used by a private organization or in a public forum--and this context should be reflected in a generalized formulation. It was also suggested that initial creation of a contract be based upon a conventional print model and then evaluated as to how it protects a sellers electronic rights. In either case, the definition of both buyer and seller obligations with regard to networked information should be clearly defined. Some in the group argued that it is useful to determine what buyer responsibilities are broadly, while others did not feel such a definition was useful. Most panelists agreed that seller liability (falsification, failure to update, etc.) should also be addressed and defined as specifically as possible in a generalized formulation.

When shown the list of unauthorized uses developed in the previous sessions (see below), the mixed panel participants added the following: citation or use of information without proper credit or attribution; limitation on "exact copies" should be broadened to "copies;" redistribution without fees should be changed to redistribution without permission (including fees or other forms of compensation). Some panelists also requested that the general formulation require definition of both authorized and unauthorized uses to avoid ambiguity.

In addition, this group recommended that a general formulation include the following definitions: "Reproducing"--printing, copying and downloading; "Distributing"--redistributing, transmitting, retransmitting and possibly reformatting; and "Altering" (replacing misrepresenting and degrading the information)--modifying, deleting, adding, editing, reformatting and, possibly, translating. Inclusion of these terms would leave only citing, browsing, reading, indexing and searching as general authorized uses in a generalized formulation.

Buyers wanted the freedom to display information in any way they wish (so long as they did not destroy the integrity of the information). Furthermore, buyers assumed that sellers should encourage the improvement of information display, reasoning that it encourages sales. Most buyers agree that a minimum standard of what is not permitted in display of information should be specified by the contract. Sellers countered that the author or information provider has given the data a distinctive "look and feel" which should not be stripped away by anyone. The mixed panel was not able to reach a consensus on the specificity of contract language regarding display.

Unauthorized uses

• Degrading the integrity of the information

• Reselling without compensation

• Misrepresenting the integrity of the information

• Originator is responsible for Knowbots

• Reproducing beyond "X" units

Guaranteed Print Subscriptions / Photocopying / Fees

Panelists were asked whether a generalized formulation should address bundling of electronic rights with the maintenance of a print subscription and if so, how such an arrangement would be structured. Should photocopying (making printed copies from printed versions) be included? Is it possible to create a standard fee structure? If so, how would it work?

Owing to time limitations, the mixed panel chose did not to address the issues of print subscription guarantees and photocopying and moved directly to a discussion of fees.

While some sellers felt it was possible to create a standard fee structure in a generalized formulation, they did not feel it was probable or desirable, because of the many alternative pricing principles, differences, and variables. Most felt that larger organizations of sellers would not participate in a standard fee structure, since their bargaining power and maneuverability would be diminished. Sellers also pointed out that some rate structures are confidential and cannot be disclosed; a standard fee structure would involve unacceptable disclosure.

Buyers represented in the mixed panel agreed with buyers panel participants that a subscription-based product was the most appealing pricing model. They also concurred that for low-interest or narrow-scope databases, a fee-for-service arrangement would be preferred. Buyers would like enough reasonable flexibility in a general formulation and in negotiation with sellers to fit within their budgeting parameters. Most buyers present felt that concurrent use (simultaneous use) was the most productive and economical way for them to measure online service charges. There were a few dissenters among buyers, however, who felt that simultaneous use was a restrictive mechanism designed to limit use. They preferred other methods not based upon use-restriction.

Monitoring/Record Keeping

From their experience, we asked what panelist system of monitoring usage worked best. What were the advantages and disadvantages of the recommended monitoring methods? They were also asked whether a general formulation should specify a monitoring system. Participants discussed how use is recorded currently in their networked environment and how they would like to see records kept to track usage and base payment to rights holders.

Participants in the mixed panel could not identify a single, ideal method of monitoring usage and confirmed that a solution remains a very large problem. While both sellers and buyers noted that the fee-for-use model had a built-in system of monitoring, buyers reaffirmed their preference for subscription-based models. While both parties recognized that the latter model was widely accepted by libraries because of its inherent predictability of fees, they pointed out that it is a restrictive system and requires a complex method of monitoring (especially those with simultaneous use restrictions). One buyer mentioned sampling as an accurate yardstick in concurrent (simultaneous) use environments. A number of buyers felt the technology was available for sellers to design their own monitoring systems, although they reserved the right to audit them. Most library buyers were willing to distribute information to publisher/sellers, providing it did not identify users and the content of their searches.

License Termination And Expiration / Enforceability / Disputes

Participants were asked what should happen to the property when an agreement is terminated or expires and whether this eventuality should be addressed in a general formulation? In addition, under what laws are the agreements enforceable and how should disputes be settled?

Due to time limitations, the mixed panel did not address the license termination and expiration, enforceability of the agreement or methods to decide disputes.

Rights Holders Organizations/Rights Brokering Organizations

In light of all the issues discussed during the panel sessions, participants were asked to turn their attention to one aspect of the READI Project which currently is not being actively developed, but which continues to be of interest to the Coalition's leadership. Under the original READI Project concept, two organizations--a Rights Holders Organization representing sellers, and an Rights Brokering Organization representing buyers--would be formed and empowered to negotiate on behalf of the groups they represent.

The mixed panel took a somewhat more philosophical view of the RBO and RHO issue than was held in the previous two panels. They reviewed the discussions that had taken place and in that light felt the concept had a basic appeal, especially in its promise to bring order the marketplace. However, they felt cautious overall and were especially wary of the antitrust problems and dangers. They also felt that an RHO/RBO might become adversarial and ultimately would not be a positive force in encouraging wider distribution of electronic works. Many felt that where one stood regarding RHO's/RBO's depended greatly on the buying power of one's organization.

Most Important And Unanswered Questions

At the end of the session, all participants were asked which items discussed during the session they were most committed to protecting. The mixed panel listed security, inclusion of other players (telephone company and cable TV companies, for example). Archiving of information was not discussed (as well as other functions performed by a library), indemnities, government issues and bureaucracy, and access to government information. Of the twelve participants present in the mixed session, seven believed that it was possible to create a formulation that generalizes about industry norms, three did not and two were uncertain.

Items/issues committed to protecting

• Open access

• Finding a contract that works

• More experimentation

• Protection of information

• Use of contract law to enforce copyright law

• Open communication and experimentation

• Providing electronic access to all electronic uses

• Making information as widely accessible as possible

Items/issues they are willing to give up

• Some rights to use information

• Complexity and regulation of current mechanism

• Types of access, unstructured/unrestricted as of now

• Model contracts and fee structures

• Precision

• Complexity

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Any comments, or feedback?		Last Update:   Wednesday, 03 July, 2002 - 04:22 PM - EDT