The ven-diagram of copyright and licensing rights: little overlap
This is part two of our multi-part series on copyright.

One of my current, favorite soapbox topics is e-books. In fact, I was tempted to title this post E-books: The great evil of our time but thought that might too easily reveal my feelings on the matter.

E-books have been the subject of quite a lot of controversy in the library community. The conversation has centered on their difficulty to access, lend and administer. Bess Reynolds of Debovise & Pilmpton LLP recently authored a white paper (published by ALTA & AALL) that lists, in perfect detail, the overly complicated systems employed by the top vendors and the administrative nightmares that result. (There was a follow up published in Spectrum in April, 2014.) Bess’s paper(s) succinctly sums up many of the technical issues regarding e-books, but it was one of the closing lines that really stuck with me.

 “[W]e should demand the right to own e-books just as we own our print titles.”

 Think about that for a moment. As fellow librarians, I’m confident that most of you agree. While frustrating and often obnoxious, the clunky technical hoops of the vendors’ e-book platforms are the least of our worries when it comes to copyright. Copyright Rules dictate the terms by which Libraries license e-books and are written to work around the First Sale Doctrine and almost all of the other regulations libraries are accustomed accommodating for print works. This core issue of “exclusive rights” affects user borrowing privileges, inter-library loans, accessibility and historic preservation; basically everything that makes libraries, libraries.

As is the norm in electronic resources, libraries rarely own e-books outright. Once the contract is over, so too is access to the content. In many cases it is the vendors who get to determine how the information is accessed, stored, viewed and/or transmitted. The main question here is how do we as librarians increase our rights to use the information as libraries are wont to do (as in the examples given above). Contract negotiations might be an alternative for extending our options of how to use it, but that assumes that we have some leverage. Because the legal publishing world is concentrated in 3-5 key players, law libraries do not always have the option of picking someone else to work with or taking a stand against overly aggressive licensing agreements. Smaller private libraries, in particular, do not always have a good alternative to use as leverage.

If this state of affairs concerns you, here are a few concrete suggestions of what you can do to help make advancements in this area.

• Forewarned is forearmed. If you are in a position to negotiate contracts for your users (or are consulted on them) look out for language that will limit what users can do with the information you are purchasing.
• Don’t just accept the standard contracts, read them and make sure you understand what the institution is giving up!
• Ask for changes or propose other language if the wording is unclear.
• Familiarize yourself and use the Model Law Firm copyright policy survey for the AALL Copyright Committee.
• Advocate for change. Have a conversation with your rep about your concerns, it might not change thing now but if enough of us are more vocal about it the future could look very different. Remember the first version of WestlawNext? Of Congress.gov? Things can change if enough librarians bring up the same issues to the right people.

Part 3 of our Copyright Series is forthcoming!