| On April 1, 2000, without fanfare, the Copyright Clearance Center (CCC)
introduced the Digital Repertory Amendment to its Annual Authorizations
Service license agreement. In the 15 months since the inauguration of this
service, locating printed or electronic information that describes the
amendment has been extremely difficult. Without success, I searched the
standard library/information journals, press releases, and even the Coalition
for Networked Information's CNI-COPYRIGHT Forum, which is a useful site
for dialogue about intellectual property issues and content-licensing agreements
(http://www.cni.org/Hforums/cni-copyright).
The only public document, located on CCC's Web site and less than two
pages in length, furnishes a brief description of the amendment (http://www.copyright.com/Services/ALS.asp).
The passage that prompted me to conduct a further investigation reads:
"The convenience of a Copyright Clearance Center (CCC) annual photocopy
license can now be extended to cover electronic reproduction through the
addition of a digital repertory amendment to CCC's photocopy licensing
service. It gives employees the freedom to lawfully download, email and
scan excerpts of copyrighted works for use within your organization all
year long."
What Is the Amendment?
In my research of the amendment, I questioned which licensing arrangements
take precedence within a corporation when content is covered by several
aggregator licenses and by CCC's Annual Authorizations Service license.
For example, one can purchase individual New York Times articles
directly from The New York Times, LexisNexis, Factiva, and Dialog Corp.
It's also possible to license New York Times articles from each
online source for placement on organizational intranets or for e-mail redistribution.
Since one can now negotiate a license for New York Times electronic
articles from CCC by signing the Digital Repertory Amendment, how does
a corporate user determine which licensing agreement to apply? Is there
any liability or legal risk from the publishers of primary material when
a corporate user selects aggregators' licenses over CCC's permissions arrangements?
Do corporations have to pay copyright royalty fees or licensing fees twice
(through the aggregator and CCC if the user has licenses with both services)?
A Conversation with CCC
I spoke with Robert Weiner, vice president of corporate sales and publisher
relations at CCC. The conversation included background information on how
the Digital Repertory Amendment is applied, and also provided answers to
my questions about which licensing arrangement takes precedence when a
corporate user has signed several agreements for the same content. (Weiner's
comments are noted in quotations.)
When the Digital Repertory Amendment was announced last year, "25,000
electronic publications and a couple of hundred major publishers" registered
for the service. Today, "close to 500 publishers and about 78,000 electronic
publications" are registered.
Two important elements make up the Digital Repertory Amendment. First,
registered publishers permit the e-mailing of "excerpts of copyrighted
[electronic] works for internal purposes only," similar to the rights
granted under the Annual Authorizations Service that allow corporate users
to reproduce print articles. For purposes of clarification, an article
within a journal or newspaper or a chapter within a book is considered
an excerpt, and the journal, newspaper, or book is regarded as the copyrighted
work. The second significant component of the amendment is that corporate
users can post registered electronic articles on intranets.
In discussing the proposed amendment with publishers, CCC learned that
they expect users to acquire original electronic articles "in some kind
of lawful fashion." The source for e-mailing and/or posting electronic
publications must directly come in digital form from a publisher or a publisher's
agent. If the article is not available from a publisher or its agent, it
can be scanned by the user, when the user has lawfully obtained the
document in paper form. "Somewhere along the line, an original has
to be acquired."
To reassure publishers that corporate users will legally acquire digital
publications, CCC includes an extensive clause within the Digital Repertory
Amendment to the Annual Authorizations Service license, titled GRANT OF
LICENSE FOR LIMITED ELECTRONIC USES. (See the sidebar on page 22 for terms.
This text is not available on the Web.) This clause, along with several
others, must be signed by corporate users before they receive permission
to e-mail and post articles. The additional cost of the Digital Repertory
Amendment varies by industry and by number of professional employees, which
is similar in concept to how the cost for the Annual Authorizations Service
is determined by CCC.
How Do the Aggregators Fit In?
CCC considers aggregators—such as Factiva, LexisNexis, Dialog Corp.,
Ovid, and NewsEdge—to be publishers' agents. For example, if Springer-Verlag
or The New York Times has an agreement with any of the aggregators to deliver
electronic articles to users, then the articles have been received legitimately.
Therefore, corporate users who have signed the Digital Repertory Amendment
to their Annual Authorizations Service contract can e-mail these articles
among themselves and/or post them on corporate intranets for internal purposes.
If a corporation has signed a license with a primary or secondary service
to load part or all of its databases or a number of the publisher's journals
on intranets—including unlimited e-mailing and posting of electronic documents—then
the user must decide which licensing service offers the most content and/or
is the most economical. Weiner advises users to follow "whichever agreement
gives you the right to do whatever you're doing," and to "operate under
the auspices of the license that allows you to do what you want to do."
If the user chooses to follow the terms and conditions of an aggregator's
license vs. signing the Digital Repertory Amendment allowing the same rights,
Weiner has assured me that there is no risk of copyright violation or liability.
I did talk to several aggregators, some of whom were unaware of CCC's
Digital Repertory Amendment. However, the aggregators confirmed Weiner's
statements regarding which licensing arrangements take precedence. Contracts
allowing users to reproduce digital material within an organization for
specified purposes must be followed.
Since CCC is often viewed as a one-stop service, the Digital Repertory
Amendment may give users a "breadth of rights for multiple publishers"
vs. an aggregator's license for a limited number of publishers (particularly
full-text, digital, scholarly, and peer-reviewed articles from scientific,
technical, and medical [STM] publishers, which are difficult to retrieve
in commercial databases). Because of the number of database, publisher,
alerting service, and document aggregators on the market, most corporate
information centers will enter into "large numbers of licenses with large
numbers of publishers and document suppliers." Each license will delineate
"different terms and conditions, different permissions, different sets
of rights, different [contract] start and end dates, different number of
users, etc.," even if there is overlapping content among all these sources
of information. According to Weiner, direct licensing agreements with publishers
may give corporate users more rights, but they "give no fewer rights" than
CCC.
Comparing Coverage
CCC has not compared overlap coverage with aggregators, and this, to
me, is a major concern. While CCC does not make an alphabetical listing
of publications available through the Digital Repertory Amendment, users
can search by publication title, publisher name, ISSN, and ISBN (http://www.copyright.com/Search/DigitalRepertory.asp).
When I told Weiner that I thought an alphabetically arranged publication
list would be helpful in comparing content acrossseveral services so that
users might reduce the number of licenses they sign, he responded that
maintaining an updated alphabetical listing is nearly impossible. Since
the number of available titles is sizable, and new publications are being
added daily, an alphabetical listing would become dated.
Although comparing CCC coverage against various aggregators can be accomplished,
the process would be tedious. Unfortunately, a corporation may have
to undertake the arduous comparison in order to determine the number of
licenses necessary to ensure an organization's access to as much coverage
as is warranted. The trick is to make sure licenses complement one another
with as little overlap as possible.
Being provided with a straightforward means of reviewing titles across
aggregators and CCC (for example, an electronic spreadsheet or database)
would help a corporation determine the fewest number of licenses with the
most coverage for the least amount of money. Information Today's
readers should know that I urged CCC to reconsider my request for an alphabetical
listing.
When asked about the number of corporations that are signing the Digital
Repertory Amendment, Weiner replied that this is "by far the most successful
service CCC has ever offered." He added that in the past 15 months "hundreds
of corporations" have signed the amendment.
Additional issues must also be pursued. Until I receive evidence of
the extent of digital content available through CCC's Digital Repertory
Amendment, conduct interviews with aggregators and copyright litigators
regarding their interpretation of which licenses take precedence, and determine
precisely how corporate users legally obtain documents in paper
or electronic formats, I'll defer an opinion about CCC's service. I'm relying
on readers of this column to contact me if they have signed the Digital
Repertory Amendment or are considering the negotiation of the amendment
with CCC. In a future column, I'll report your comments, as well as those
from aggregators and others who wish to share their experiences.
| AMENDMENT (ELECTRONIC) TO THE ANNUAL AUTHORIZATIONS SERVICE REPERTORY
LICENSE AGREEMENT
B. GRANT OF LICENSE FOR LIMITED ELECTRONIC USES.
1. CCC, as agent for the Electronic Repertory Rightsholders, hereby
grants to User the non-exclusive right to make the following electronic
uses of articles and other portions (and only portions) of Electronic Repertory
Works by employees and Contractors:
(a) to select portions from Electronic Repertory Works lawfully obtained
from an Electronic Repertory Rightsholder (or an authorized representative
of an Electronic Repertory Rightsholder) already in digital form and to
treat each such portion as an Authorized Reproduction under the terms of
this Amendment;
(b) only where the desired portion of an Electronic Repertory Work is
not available in accordance with the provisions of Section B.1(a) above,
to convert portions of Electronic Repertory Works, lawfully obtained in
paper form, to digital form (in accordance with Section F.1 below) and
to treat each such portion as an Authorized Reproduction under the terms
of this Amendment;
(c) to store Authorized Reproductions within User's electronic network;
(d) to distribute, by means of User's intranet (or similar internal
electronic network) Authorized Reproductions to any employee or Contractor
of User with authorized access to User's intranet (or similar internal
electronic network), for reading and electronic "marking up" by such employee
or Contractor and for other uses within the scope of this Amendment;
(e) to print out, on User printing equipment, paper copies of the Authorized
Reproductions on paper or paper equivalents (for example, film or acetate);
(f) to distribute such paper copies of Authorized Reproductions for
the Internal Purposes of User;
(g) to preserve Authorized Reproductions as part of the storage of the
work product of a workgroup for as long as such storage may be maintained
(regardless of the termination of this Amendment or of the entire Agreement
including this Amendment) if such Authorized Reproductions were created
pursuant to the license created by this Amendment and were a necessary
part of such work product (provided, however, that such Authorized Reproductions
may be used by User after the termination of this Amendment or of the entire
Agreement including this Amendment only to the extent necessary to prove
that they were in fact a part of such work product);
(h) to transmit electronic copies of Authorized Reproductions, each
of them a faithful and accurate representation of the applicable Electronic
Repertory Work portion, to an agency of the United States government or
of the government of a state (or political subdivision thereof) or of the
government of another country (or political subdivision thereof) if required
by such government for regulatory purposes (such as for new drug application
or securities regulation purposes), provided that such electronic copy
carries the copyright notice attached to the Electronic Repertory Work
and is marked to the effect of "This Electronic Copy of Copyrighted Material
Was Made and Delivered to the Government Under License from Copyright Clearance
Center, Inc. No further Reproduction is Permitted"; and
(i) to continue to use the applicable Electronic Repertory Work portion
in accordance with subsections (c) to (h) above even after termination
of this Amendment or of the entire Agreement including this Amendment (but
in that case without the payment of additional royalty), provided that
both such Electronic Repertory Work portion and such use were covered by
either this Amendment, or the entire Agreement including this Amendment,
or a similar license from CCC, continuously for no less than three years
prior to termination.
2. The authorization provided by Section B.1 above (a) does not include
any right to manipulate or change an individual Electronic Repertory Work
portion in any way, (b) except as provided in Section B.1(h) above, does
not include any right for a User to distribute an electronic copy of an
Authorized Reproduction to any person other than an employee or Contractor
of User for his or her own use within the scope of User's business, and
(c) does not include any right to create a library or collection intended
to substantially replace User's need for a particular Electronic Repertory
Work.
3. The authorization provided by Section B.1 above extends only to those
employees and Contractors of User ordinarily located in the United States.
An employee or Contractor of User ordinarily located outside the United
States may not exercise any of the rights described in Section B.1; provided,
however, that this prohibition does not extend to the act by an employee
or Contractor of User ordinarily located outside the United States of reading
an Authorized Reproduction sent by electronic mail or posted on User's
intranet if such employee or Contractor has authorized access to that intranet.
© 2000 Copyright Clearance Center, Inc. Reprinted
with permission. |
Stephanie C. Ardito is the principal of Ardito Information &
Research, Inc., a full-service information firm based in Wilmington, Delaware.
Her e-mail address is sardito@ardito.com. |
