This report covers principal topics addressed by participants. It will not follow the order in which the questions were raised, nor will it cover every item discussed. Rather, it provides an overall assessment by Robert Ubell Associates of the results of the sessions.
The moderator was successful in securing comments from all participants on most questions raised in the script, although it should be noted that concerns not mentioned in the script were also addressed. The client took the opportunity of raising additional questions in the context of the discussion.
The principal topics addressed by participants in all three sessions included:
- Defining the User;
- Parties to Agreements;
- Parties Signing Agreements;
- Parties Implementing Agreements;
- Defining the Network;
- Mechanisms of Use;
- Unauthorized Use;
- Guaranteed Print Subscriptions/Photocopying/Fees;
- Monitoring/Record Keeping;
- License Termination and Expiration/Enforceability/Disputes;
- Rights Holders Organization/Rights Brokering Organization;
- Most Important and Unanswered Questions.
In general, participants were responsive and enthusiastic, expressing themselves openly on most issues, although some were more vocal than others. Only a few were reticent, requiring prompting. Most felt that the session was valuable, judging from the positive responses at the end of each session.
DEFINING THE USER
All three panels agreed that context defines the user. The buyers and sellers panels discussed the differences between the two types of users (ultimate user and buyer as agent for the user) and agreed that they were good distinctions. All three groups agreed that it was impossible to define the user in the context of a general formulation. The sellers and mixed panels identified numerous examples of users.
PARTIES TO AGREEMENTS
There was general agreement by all three panels that there are two principal parties, “buyers” and “sellers,” in all contractual relations. An intermediary may act as a buyer or seller, but in any single contract, the roles are fixed as either buyer or seller.
A third, shadow entity was identified in the buyers panel as, “public good,” and altered by the sellers panel to read, “legal regime.” This notion was expressed as a necessary context within which all agreements must take place.
PARTIES SIGNING AGREEMENTS
The groups were silent about this issue, but turned instead to questions about what constitutes ownership. Owing to the inherent difficulty in identifying who has the authority to sign an agreement, all panels appeared to agree that it was not useful to emerge with a definition that could be generalized for all contracts.
PARTIES IMPLEMENTING AGREEMENTS
A consensus was reached by all panels that, in the context of a general formulation, no title or individual should be named as the party responsible for implementing an agreement. Nonetheless, when it came to specific agreements between parties, the buyers panel recommended against identifying any officer, while the mixed panel appeared to support the introduction of a specific title or individual as the officer responsible for implementation. The sellers panel was divided on this question.
DEFINING THE NETWORK
It appeared that all three groups preferred to identify the nature of the network in the context of specific agreements between buyers and sellers, although the buyers panel formulated an abstract definition.
MECHANISMS OF USE
The buyers panel turned its attention to “standards,” rather than mechanisms of use, concluding that a set of minimum acceptable standards covering format/presentation might be incorporated into any contract.
Sellers, on the other hand, failed to comment on standards, but did discuss mechanisms of use. Sellers, however, were divided as to whether specific mechanisms of use should be listed in any agreement. Some felt that contracts should identify precise rights that are and are not transferred in relation to those mechanisms. Others preferred that agreements be flexible enough to be revised as needed to embrace new technologies and applications as they emerge.
During the mixed panel, buyers seemed most interested in content-free mechanisms, searching for the ability to easily manipulate information to suit their individual needs. Sellers held the position that “value-added” included the information display, user-interface and search engine (among others) and should not be separated from the information.
Copyright was the most complex question addressed by the panelists, since it was acknowledged that traditional issues that flow from print may have less relevance in the context of networked information, either because of difficulties in the definition/interpretation of the ownership of information and credit/compensation for creators or because of the technological obstacles to enforceability.
Overall, little direct agreement or disagreement emerged because of the wide variety of issues important to each group. In general, however, institutional buyers did not wish to restrict their interpretation of “fair use” in any contract but, rather, preferred to accept the broader notion of “fair use” as set by legal precedent. Sellers wished to employ contract law, entirely without reference to “fair use,” identifying precisely what rights are conferred to buyers.
Buyers objected to the introduction in contracts of sellers authority to confer rights which buyers feel they hold already under copyright law. Panelists were so attuned to issues involved in any specific agreement, that they failed to offer suitable language addressing copyright that could be employed in a generalized formulation.
Buyers appear to be more concerned about the nature of copyright, while sellers appear to be more influenced by economic consequences of copyright and associated issues of policing and enforceability.
Panelists largely agreed that, in a general formulation and in specific contracts, that buyers and sellers did have obligations regarding unauthorized uses. Disagreement, however, existed over the extent to which buyers were obligated to police, rather than notify, since they did not object to providing end-users with copyright notices. While it was possible to list, in the abstract, what one could identify as unauthorized uses, participants could not arrive at a consensus as to specific unauthorized uses that would be applicable under all circumstances and therefore appropriate for inclusion under a generalized formulation.
Buyers and sellers disagreed as to the extent to which buyers would be required to police, or be held responsible for, infringements on the part of their end-users.
GUARANTEED PRINT SUBSCRIPTIONS/PHOTOCOPYING/FEES
Buyers rejected the obligation to purchase parallel print products in connection with networked information. Nor were they prepared to accept pricing formulas that were dependant on the acquisition of print. Sellers did not defend the notion of bundling strongly, but still wished to maintain bundling as a marketing option.
Even though buyers strongly favored subscription-based pricing, nonetheless, they failed to specify whether they wished to incorporate it into a generalized formulation. Sellers, on the other hand, explicitly wished to exclude any fee structure in a generalized formulation, in order to maintain their ability to negotiate a wide range of fee structures. If there were to be a generalized formulation, sellers suggested the inclusion of a list of fee options. In the mixed panel, some buyers recognized that an exclusively subscription-based approach could not be universalized–although large, subscription-based institutions would be interested.
In light of their interpretation of “fair use,” buyers preferred unrestricted reproduction of networked information up to a negotiated limit or ceiling. Sellers, however, maintain that any additional copying is unauthorized without contractual permission. They created a list of general restrictions they felt would likely be imposed in any possible generalized formulation or specific agreement.
None of the panelists discussed specific examples of monitoring usage to any great length in a networked environment. Nor could they identify a single ideal method. The buyers discussion of the issue was driven by concerns that any monitoring method would be best designed by the seller. Buyers were adamant about concealing user identification as defined by state laws governing library confidentiality. Although sellers preferred to have as much information about individuals and the contents of their searches as possible (for marketing and market research purposes), they recognized the likely limits of access to that information owing to state law.
LICENSE TERMINATION AND EXPIRATION/ENFORCEABILITY/DISPUTES
Since both buyers and sellers now think almost exclusively about licenses (rather than purchases) when buying or selling networked information, both the buyers and sellers panels agreed that upon termination or expiration of an agreement, the buyer forfeits access to networked information leased under the terms of the agreement. However, buyers wanted assurances from sellers that there would be mechanisms in place which would allow them access to the information on a fee-for-use basis.
All panelists agreed that state laws governing enforceability vary greatly and it would not be desirable to recommend any particular set of laws in the context of a possible generalized formulation. Sellers and buyers preferred to retain the option of deciding which set of state laws would be most advantageous to their position in the context of any specific agreement. Buyers also wanted the establishment of a forum to discuss amelioration of the law, recognizing that current laws does not reflect the state of the art.
RIGHTS HOLDERS ORGANIZATION/RIGHTS BROKERING ORGANIZATION
All panelists were quick to identify inherent advantages and disadvantages in the creation of either an RHO or an RBO. A shared consensus of disadvantages included anti-trust restrictions, restrictions to membership by publicly funded organizations, creation of a new bureaucracy, and loss of autonomy. Both buyers and sellers were concerned with the circumvention/domination by major organizations and institutions and that the RHO or RBO organizations would be restricted to smaller institutions only–although buyers recognized that RBO’s might prove attractive.
Both buyers and sellers foresaw benefits to the creation of these organizations in their ability to standardize and rationalize the industry, spur development of new agreements and expand the marketplace. Participants in the buyers and sellers panels recognized advantages to their own organization which might counterbalance advantages gained by the corresponding organization. Subsequently, members of the mixed panel pointed out that the establishment of these organizations might eventually escalate the adversarial nature of the buyer-seller relationship.
On the whole, buyers were more inclined to favor the creation of a rights organization that would provide them with a unified bargaining agency. Sellers were far less likely to support an organization that would represent their interests.
MOST IMPORTANT AND UNANSWERED QUESTIONS
Buyers are concerned that current rights under copyright law and “fair use” are upheld and any discussions of agreements in the networked environment be prepared within the context of “public good.” Sellers were committed to maintaining their prerogative as rights holders, they were also focused on the methods and economic issues that would arise as a consequence of whatever restrictions and permissions were established under contract.