Enforce Yourself

There is a common gap in the boilerplate licenses legal publishers use.  It impacts the amount of content duplication a licensee can make and appears to be an evergreen issue.  I was reviewing a new license yesterday and there it was again.  In fact, I seem to have to raise it in every contract discussion: if your contract limits copying by measurement:

  • how do you, the publisher, measure and limit that usage within your electronic resource?
  • how do you anticipate the library will meet that condition?

[Shrugs]

Boilerplate is always written for the creator’s benefit, so it’s not surprising, perhaps, that they’re so poorly written.  I’m not sure any law library could just accept the default terms and conditions when they say this (emphasis mine):

[P]rint and make photocopies of insubstantial portions of the [content] which result from browsing or searching

You may make copies (print or electronic) of not more than a 10% portion of [content]

No part of this work covered by the publisher’s copyright may be reproduced or copied in any form or by any means (graphic, electronic, or mechanical, including prating, recording, taping, or information and retrieval systems) without the written permission of the publisher

[C]opy only insubstantial portions of the [content] which are comprised of legislation or judicial or quasi-judicial decisions or parts of court documents which result from browsing or searching to give to a judge or other presiding officer or to a court registry or other parties

These are all Canadian legal publisher licenses, for what it’s worth.  None of these licenses define insubstantial, and none of the systems they license provide a way for a person to tell what portion of the information (the title, the database, the entire service) they are interacting with.  And licenses that remove the fair use or fair dealing aspect are, on the one hand, very clear.  But there’s still the question of whether the publisher can detect a violation (cut/paste, or screenshot) or how the library enforces a complete ban.

This is perhaps most pronounced in public, courthouse law libraries where our resources are geared towards a wide variety of users working on their own.  As libraries license content and are disintermediated from its delivery, the ones signing the contract may be the least able to enforce it.

The right to download using the commands of the Online Services and store in machine readable form for no more than ninety (90) days, primarily for the Authorized User’s exclusive use, a single copy of insubstantial portions of those Materials

If you work in an environment where library staff do not handle 100% of the research, it may be impossible to know whether something has been stored for more than 90 days.  If a lawyer cuts and pastes content into an e-mail and sends it to someone else in the office, you’re almost guaranteed that it will last longer than 90 days.

The publisher’s goal is to stop you from recreating their resource internally:

“Insubstantial Portions” means amounts of [content] that, individually or in the aggregate, (a) have no independent value other than as part of Subscriber’s work product and (b) could not be used in any way in whole or part as a substitute for any product or service

Fine.  Most librarians have war stories of the law students who have printed an entire legislative code, or the lawyer who has downloaded an entire treatise because they’re too cheap to buy it, or of the people who steal chapters from looseleafs to update their own copy.  This is a thing.  But there’s no point in agreeing to licensing terms that the publisher will hold you to without providing tools to know whether you’re compliant, and which you can’t – or won’t – enforce without their help.

Here’s an example of a clause that is based in reality:

… Authorized Users may make limited noncommercial use of portions of the [content]; may copy and print portions of the [content] using the copy and print features provided on the [publisher’s] site to the extent permitted under Canadian law pursuant to the doctrine of fair dealing…

A library using this service is probably not going to have a problem meeting this requirement, and while fair dealing is a bit “eye of the beholder” and no-one should use pursuant any more, it reflects the inherent wiggle room in sharing content.  This publisher can’t measure compliance either, but at least the library can attempt to meet its fair dealing  obligations.

I generally ask for a letter from the publisher’s lawyers expressly altering these sorts of terms, to reflect the fact that they can’t measure insubstantial or a certain percentage of use, and neither can we, and that neither of us can be successful at understanding compliance based on those terms.  Usually that means an alteration that shifts us to fair dealing.

License violations happen.  We once had a subscription shut off for a day when the publisher noticed that someone was downloading 100% of the content in a particular resource.  Someone had shared their password.  We reset the password, the content download stopped, and the publisher enabled our subscription again.

Alternatively, I recently received a phone call asserting that there may have been a license violation, and a question from the publisher as to how it happened?  It happened because (a) your system enables someone to download 500 documents at a time and so downloading 3,000 isn’t hard and (b) because we do not watch what each researcher in our library is doing.  In some cases we have caught people mis-using content and stopped them, but that’s based on the long experience and keen eyes of law library staff who see someone acting strangely.

These are the sorts of things that you just work out when they occur.  There’s got to be flexibility in library environments, and more flexibility when the people signing the license aren’t the people doing the research, around how people use – print, copy, download, store – the information.  But libraries can do themselves the service, at the front end, of tightening up some of these license clauses so that both the publisher and the law library understand the limitations under which they operate.  Ask the publisher for a letter that supplements the license – or have them edit the license itself – to reflect these limitations.

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