Stewardship has always figured predominantly in the mission of libraries. This paper discusses major findings and implications of a study of licensing in U.S. academic libraries. The data suggests that not all libraries are accepting their heritage role — that is, they are not planning for longterm preservation and access for their growing licensed digital collections and resources. Instead they rely increasingly on third parties to perform this fundamental function. This shift may have farreaching implications for longterm preservation and access to the world’s knowledge and cultural and historical record.
Stewardship is preservation for future generations
Stewardship as sustainability of licensed digital resources
Stewardship is integrity and authenicity of digital resources
Stewardship is service on behalf of users and on behalf of society
Ownership versus nonownership of library resources and collections
Licensing and preservation over space and time
Use and users: Implications for licensing for information access and use, particularly intellectual freedom, fair use and values of control
Licensing and fair use
Licensing and intellectual freedom
The preservation imperative
No guarantees for uses or users
Nondisclosure: Impediments to a librarys mission
Towards a policy framework and agenda for longterm access and use of licensed digital information
Concepts, ideas, images not things are the real items of value in the new economy. Wealth is no longer vested in physical capital but rather in human imagination and creativity. Intellectual capital, it should be pointed out, is rarely exchanged. Instead, it is closely held by suppliers and leased or licensed to other parties for their limited use.
Jeremy Rifkin, The age of access, 2000.Libraries of all kinds during the centuries of their existence have had a common objective one so generally accepted that it is seldom made explicit. It is the conservation and organization of the worlds resources of recorded thought and fact so as to make them available for present and future users.
Robert D. Leigh, The public library in the United States, 1950.
Stewardship has always been a key characteristic and mission of libraries. According to Nancy M. Cline, the stewardship of cultural resources may be the epic challenge for the new millennium ... .  Defined by the Oxford English Dictionary Online (OED), stewardship is the administration, management, control including [the] responsible use of resources (OED Online, 2005). Stewardship implies mission, responsibility, integrity, trust, accountability, service, and preservation and sustainability for future use. Within this definition, both stewardship and licensing influence the administration, management and control of use of digital resources. However, their purposes differ starkly. Licensing grants a limited right to access and use of resources, and supports the interests of owners or publishers. Stewardship, in contrast, is action taken in trust or on behalf of another (for example, current and future generations of users), with the aim of ensuring the integrity, authenticity, and the sustainability of resources, and thus their future value and use.
This paper discusses the major findings of a study conducted in 2005 by Sharon Farb, Negotiating Use, Persistence, and Archiving: A Study of Academic Library and Publisher Perspectives on Licensing Digital Resources on the implications of licensing in U.S. academic libraries on longterm access and use of digital resources (Farb, 2006). A multiplemethod design was employed, to gather as much relevant data as possible, to enable comparisons across data types, and to help insure validity and reliability. Little empirical work has been conducted concerning the implications of licensing digital content for libraries and their users. In 2003, however, Adrienne Muir conducted a study focused on U.K. institutions and the U.K. juridical context related to copyright and licensing for digital preservation (Muir, 2003; Muir, 2004). There are, therefore, few research designs or existing data sets on which this study could build. As a result, I elected to gather four relevant types of data: 1) primary legal texts, such as U.S. Federal Copyright Law, state law relating to contracts, the Licensing Act of 1661, and other relevant existing or proposed legislation; 2) data collected from a survey of 198 college and research libraries in the United States; 3) standard license agreements disseminated online through publishers Web sites for products offered for sale to libraries; and, 4) interviews with top publishers, including respondents from commercial, scholarly society, and university presses.
Michael Gorman ranks stewardship at the top of his list of eight core or central values of librarianship . He traces the metaphorical meaning of stewardship to the King James Bible, as someone or some entity that preserves the value of something and ensures that future generations enjoy the legacy that comes to them with an equal or enhanced value. He identifies three components of library stewardship: 1) the preservation of the human record to ensure that future generations know what we know, 2) the care and nurture of education for librarianship so that we pass on our best professional values and practices and 3) the care and maintenance of our libraries so that we earn the respect of our communities .
Licensing is about control of how, when, where, and under what circumstances digital resources are at college and research libraries. In her article on the implications of new kinds of contracts in networked digital environment, Margaret Jane Radin highlights two models of legal agreement or contract; contract by consent and contract as product . According to Radin, the contractasconsent model is the traditional picture of how binding commitment is arrived at between two humans and fits within the traditional freedom of contract point of view, whereas in the contractasproduct model the product plus terms are a package deal . This package deal (license and product are inextricably linked and all access and use of the product is governed by the terms of the license) is currently practiced by the largest publishers worldwide. Increasingly, digital content is acquired by college and research libraries via license agreements that govern the terms, condition, and duration of access. Such agreements routinely prohibit preservation copying, archiving, or perpetual access. These publishers license agreements appear to prevent two of Gormans three requirements of stewardship from being met.
Stewardship is preservation for future generations
For libraries and cultural memory institutions, stewardship in predigital times consisted largely of acquiring and preserving collections, artifacts, and papers. Historically, preservation and collection stewardship were central to the fundamental objectives of these institutions; in reality preservation expenditures and resources failed to keep pace with the problem of deteriorating collections. Anne Kenney and Deirdre Stam note that preservation expenditures as a percentage of the librarys total budget are below 3 percent for all institutional groups ... .  Librarian Patricia Battin, a leader in the field of preservation, highlighted the global stakes over twenty years ago, identifying critical challenges to progressive [analog] deterioration of library collections and concluding that[t]he primary managerial challenge is to find a way, within our pluralistic society with a strong tradition of institutional individuals, to forge a coalition among the interested parties scholars, librarians, university officers, publishers, and all those who use the records of civilization with a common purpose strong enough to transcend the barriers of apathy, tradition, myth, and institutional selfinterest. Our national heritage is at stake. 
Stewardship with regard to digital preservation presents a more complex, continuous, and highly distributed challenge than does print preservation. Digital materials are more prone to deterioration and thus to compromised access, especially as libraries become more reliant on content that is available in digital form only. In being asked for the proportion of their licensed digital resources that are acquired solely in digital or online form (see Table 1), the average reported proportion was 69.4 percent.
Table 1: Survey Response Section 1, Questions 27. Survey question Number of respondents Mean number Range of high/low Standard deviation Median number Absolute dev. from median 2. In 1995, about how many signed license agreements for digital resources did your library have? Please fill in a number (for example, 60): _______. 34/40 13.9 110/1 20.4 9.50 9.62 3. Today (2004), about how many signed license agreements for digital resources does your library have? Please fill in a number (for example, 75): _______. 36/40 179 600/20 138 N/A N/A 4. What is your librarys total collection budget as a dollar amount? $US__________. 36/40 $US5.6 mil. (2004) N/A N/A N/A N/A 5. What percentage of your librarys collection budget do you expect to spend this year on licensed digital resources? Please do not include items like your librarys OPAC or other digital project development: _______%. 41/41 28.3% 60%/8% 13.2 29 10.7 6. Of the digital resources for which you currently have signed license agreements, what percentage does your library also acquire in print, microfilm, CD or other physical forms? ________% 33/40 29.9% 75%/5% 22 20 17.4 7. What percentage of your librarys licensed digital resources are acquired in digital form only? (Online access only): ________%. 33/40 69.4% 98%/25% 23.4 80% 19.6
Eighteen of the 33 respondents reported that between 80 and 98 percent of their digital resources were acquired solely in digital or online form. In addition, the sheer volume of digital material and library collections governed by license agreements has grown dramatically and continues to increase. In 1995 over 90 percent of libraries reported having fewer than 15 license agreements and nine years later 36 institutions reported a mean of 179 signed license agreements. Therefore, an overall increase of 600 percent occurred from 1995 to 2004.
... licensing does not assure that materials will be preserved and available for future use.
This high percentage of licensed library content without any print counterpart challenges traditional concepts of library stewardship and mission. Ongoing migrations and upgrades to new technologies, technological obsolescence, legal limitations, and lack of global standards related to the integrity and authenticity of digital products make preservation problematic. Most license agreements explicitly prohibit libraries and individual end users from making archival or backup copy underlies, as provided under federal copyright law. Clifford Lynch emphasizes the digital line of demarcation: [I]n the old world of physical artifacts, simply by publishing their works so that an archive or library could obtain a copy, authors would in effect enter in the necessary agreements to ensure that their works would be archived as a byproduct, but this is no longer the case . Authors as well as future generations of readers are affected: licensing does not assure that materials will be preserved and available for future use. Publishers have never considered these functions to be part of their role.
Digital licensing affects libraries stewardship and preservation responsibilities in three ways: 1) lack of the right to archive licensed digital content; 2) lack of a guarantee of perpetual or persistent access; and, 3) the degree of planning by libraries and publishers for the preservation of licensed resources, and for digital preservation more generally.
Prior to licensing, preservation and access were an implicit part of acquiring the physical item, artifact, or collection. In the traditional library, access and stewardship are served by the same strategy assemble in a single place the books, journals, films, sound recordings, prints, photographs, and other artifacts that carry our societys scholarship and knowledge and combine to shape and reflect its culture . In a digital environment, license agreements prohibit the library or its authorized users from archiving the content.
Figure 1: Trends in licensing agreements in U.S. libraries.
The intent is to achieve these goals by assisting and amplifying, not replacing, the expertise of collection development and metadata experts. The emphasis is on partially repurposing the expenditure of expertise spent on routine tasks to tasks actually requiring subject and metadata expertise. In achieving this, these tools and services should help our community, as a whole, better apply and extend its expertise in the form of larger and richer metadata collections and thereby improve their use value for traditional, new and/or more specialized user communities that are increasingly being served by nonlibrary interests/institutions.
The overall state of underdevelopment and lack of awareness about the implications of licensing for library stewardship are reflected in these findings. Of the six commercial publishers agreements reviewed, only one contains even a limited right to archive. All six however, offered archived material for purchase or lease. As one scholarly society publisher interviewed for this study put it, I dont think libraries will be able to archive as they did in print. (Farb, 2006)
Respondents reported that on average, just 36 percent of their license agreements included the right to archive. In contrast, U.S. copyright law provides libraries and archives with the right to reproduce copyrighted work for purposes of preservation and security without requiring advance permission from the copyright holder (17 U.S.C. Section 108). As libraries continue to acquire digital content, such explicit prohibitions on the right to archive, preserve, and use digital resources will challenge stewardship responsibilities.
Over 50 percent of survey respondents considered lack of archive, preservation and storage of electronic copy, replacing print with the electronic version, or developing policies and infrastructure for longterm access and preservation [and] doing this affordably among the most difficult challenges to longterm access and use of digital resources. Most publishers did recognize these difficulties, some saying they were involved in developing a plan, experiment, or collaborative effort or venture related to digital preservation of licensed content. To date it is only the largest commercial publishers that have any systematic plan or infrastructure to support longterm preservation and archiving of licensed digital content.
Persistent access to licensed content is a serious issue. Scholarship requires the ability to check sources and verify information acquired in the past in the future weeks, months and often years after publication or creation. Derek Law cites three essential requirements for scholarly communication: permanence, availability and accessibility; [o]ne of the unremarked triumphs of librarianship in the last forty years is that we have created a system which allows the researcher reliably and persistently to identify and retrieve any document published anywhere in the world . In contrast, this is not the case with licensed digital resources available via the Internet (Law, 1998).
Effective stewardship and long term-preservation require planning. Says Clifford Lynch, [p]reservation of digital materials is a continuous, active process that requires active management and continual vigilance . Of the 35 respondents, only nine reported having a plan for longterm preservation, access, and use of licensed resources. While over 75 percent of libraries responding (26/35 libraries) identify the lack of a digital archive of licensed resources as an issue, only 25 percent (9/35 libraries) report having a plan to deal with the issue.
Figure 2: Lack of archiving rights, perpetual access, fair use & longterm planning for licensed digital resources (LDR).
Stewardship as sustainability of licensed digital resources
Nancy M. Cline defines stewardship as the responsible use of resources over time . The United Nations World Commission on Environment and Development defines sustainability as the ability to meet the needs of the present without compromising the needs of future generations to meet their own needs (World Commission on Environment and Development, 1987). Both sources suggest that an inherent value and objective of stewardship is sustainability; the Farb licensing study found that current standard publisher license agreements and licensing practices present serious barriers to sustainability, and thus to longterm access and use, of licensed digital resources (Farb, 2006).
For U.S. college and university libraries, stewardship and sustainability must be analyzed in the context and mission of the parent institution. The fundamental foundation of higher education is the creation, dissemination, and advancement of knowledge. Libraries serve an essential element in fulfilling this mission. Louis Shores notes [A]merican higher education began with a library . Most academics today would certainly agree with Shores that a college without a library was virtually as impossible in colonial times as it is today .
Present findings suggest that digital licensing presents several threats to sustainability. First, license agreements for digital content are of relatively short duration (typically one to five years); terms and conditions change over time as new licenses are negotiated. Additionally, publishers routinely buy and sell titles, requiring removal and addition, title by title, or publisher by publisher. This is problematic with aggregated journal packages and databases. Through sales, mergers, and acquisitions, large commercial publishers are getting larger. Terms and conditions of any title included in a particular license for a particular package could change repeatedly over time, with the content being governed by different license agreements containing different terms and conditions negotiated by different publishers.
Second, economic and retail costs of digital resources, particularly of large packages of online journals, have rapidly outgrown those for print, and have risen much faster than traditional library resources when compared to the Consumer Price Index (CPI). For example, between 1986 and 2002, while library budgets remained relatively static and state institutions suffered cuts, library expenditures for journal subscriptions increased 227 percent. Over the same period the consumer price index increased by only 57 percent (Van Orsdel and Born, 2004).
Taylor & Francis, among the three largest academic publishers worldwide, with a 10 percent market share, includes an even broader warranty disclaimer in its Terms and Conditions statement for published journals: to the fullest extent permissible the Taylor & Francis Group Ltd disclaim warranties of any kind (Taylor & Francis, 2005; Kassab, 2003).
Stewardship is integrity and authenicity of digital resources
Stewardship has always implied an element of integrity some guarantee of the completeness or unimpaired condition of the information resource ... the digital environment, where licensing is a prerequisite for library access and use, presents a host of new challenges to the integrity and authenticity of digital resources (MerriamWebster Online, 2005). The stewards responsibility to preserve or protect the completeness or unimpaired condition of resources is affected by several significant factors not found in the print environment. Among the challenges are technological obsolescence, and the limited lifecycles of the underlying technology platforms themselves as well as the software required to support and run the content. Digital information is subject to technological controls that can restrict access and use beyond that allowed by copyright law. In a distributed networked digital environment, the authenticity of materials is more difficult to ensure. License agreements frequently contain disclaimers about the integrity and authenticity of digital content covered by the license.
Less than 15 percent of the fifteen publishers license agreements analyzed contained a warranty for the integrity or authenticity of content subject to the license. Of the three publisher groups whose agreements were analyzed, only scholarly societies included an explicit warranty of the integrity and authenticity of the licensed content.
Stewardship is service on behalf of users and on behalf of society
Service has always been a component of stewardship. From the earliest definitions, a steward has acted on behalf or in service of someone or something else (OED Online, 2005). Peter Block proposes that service is the critical or core element of stewardship.Stewardship springs from a set of beliefs about reforming organizations that affirms our choice of service over the pursuit of selfinterest. When we choose service over self interest we say we are willing to be deeply accountable without choosing to control the world around us. It requires a level of trust that we are not used to holding. 
Kay Herr Gillespie highlights the role of service and trust in her definition of a steward. To be a steward is not to have ownership of something. It is rather to have the responsibility of taking care of something on behalf of another . As licensees of digital content, libraries no longer own the physical materials, but are relegated by contract to nonowner status, while still bound by principle, mission, and commitment to stewardship of the licensed digital content on behalf of their users. The implications of this shift may be an important direction for future research.
To summarize, digital resource licensing, as currently practiced, challenges U.S. college and university libraries fundamental stewardship role in these ways:
Current publisher practice denies libraries the right to archive licensed digital content.
Current publisher practice denies libraries right to perpetual access to licensed digital content.
Current publisher practice omits fair use guarantees from standard license agreements.
Current commercial publisher practice requires libraries to sign nondisclosure clauses that prevent libraries, particularly private college and research libraries, from sharing information related to the terms of the agreement (most states, in contrast, have public records law requirements that prevent the inclusion of nondisclosure clauses in public or state contracts);
Current economic publishing models are unsustainable.
Most college and research libraries have not developed plans for longterm preservation and use of licensed digital resources.
Uncertainty regarding the integrity and authenticity of digital resources, coupled with the lack of any representations or warranties related to the content (including, but not limited to, integrity, authenticity, or completeness of content) in most license agreements.
The dynamic nature of digital information technologies and uncertainty regarding technological, legal, economic, social and cultural solutions.
Growing dominance of digital publishing and subsequent academic publishers control of authors copyrights.
Ownership versus nonownership of library resources and collectionsI dont honestly know which licenses assure perpetual access to content, but I know there are such licenses. As Ms. Carruth points out, however, libraries are agreeing to licenses that provide no guarantee of continued access to the content if the subscription ends. What this means, of course, is that universities are only renting this information.
Kenneth L. Frazier, Director of the University of WisconsinMadison Library (quoted in the Chronicle of Higher Education, 2002)
What does it mean for libraries to be transformed from owners to renters of increasingly larger and larger proportions of their collections? What are the respective benefits and responsibilities of owners and renters of licensed library materials and collections? How, if at all, has licensing (i.e., renting) of digital materials and collections, rather than purchase (ownership) affected the longterm access and use of college and university libraries collections? This section explores these questions, and the implications of historic and current models and practices of licensing and the ownership or nonownership of library resources and collections.
Ownership is defined as the legal right of possession; property, proprietorship, dominion (OED Online, 2005). Ownership entails three legal rights: the right to exclude; the right to do whatever you want or to prevent others from doing certain things with the items owned; and the right to preserve. Ownership in the library context pertains to the physical item, not the rights to its content. However, for most college and university libraries, the right to select items for their collections, the right to use them, and the right to preserve them so that they are available over the long term, are essential to support teaching, research, and scholarship. In contrast, digital licensing has compelled libraries to move from this traditional approach to an access model, where they lease or rent materials. As nonowners of licensed digital content (which comprises an everexpanding proportion of collections), libraries provision of access and use are increasingly constrained by the terms and conditions of license agreements.
Historically, libraries acquired materials and collections either through purchase or gift. Once acquired, the materials became the property of the library. In 1908, the U.S. Supreme Court case, BobbsMerrill Co. v. Straus, established the first sale doctrine, providing libraries and used bookstores (and later, video stores) the legal right to lend, resell, or otherwise dispose of lawfully purchased, published, copyrighted property. In BobbsMerrill, the publisher and copyright owners of a mass market novel sought to restrict future purchasers, including libraries, from purchasing the novel for less than the stated price restriction at the time, of $1. The U.S. Supreme Court held that a copyright owners control over the physical manifestation of the intellectual property terminates with the first legitimate sale of the property. This key decision confirmed libraries legal rights to lend and circulate library materials.
Benefits and responsibilities accompany library ownership of materials. Libraries and archives enjoy the protections and exemptions of the U.S. Copyright Act, including, but not limited to, first sale and fair use. These fundamental principles are consistent with the long established U.S. (and English) tradition of copyright law beginning with the Statute of Anne in 1710 and Article 1, Section 8 of the U.S. Constitution which established copyright to promote science and the useful arts and to provide a temporary incentive and protection for creators. The selection, cataloging, maintenance, access, and use of physical library materials entails their preservation, and thus libraries responsibility to ensure accessibility for present and future users.
As the results indicate, nonownership is the current state of affairs for an evergrowing percentage of licensed digital resources and collections acquired by college and university libraries; on average, licensed digital materials without a print counterpart comprise up to 60 percent of academic library collections. The relatively short duration of license agreements also limits archiving. Libraries failure to obtain warranties that secure persistent access to and use of the content also limits use. As Adrienne Muir notes, [i]f libraries do not physically own digital material, they cannot preserve it because this requires physical intervention and the new access rather than ownership model [raises] the question of responsibility for preservation .
Participants echo the uncertainty over who is responsible, and how to ensure longterm access and use of licensed library collections (Farb, 2006). Contributing to this uncertainty is the changing structure and nature of library collection ownership, where libraries that once purchased and owned collections (thus making them available to present and future users) must now license and effectively rent materials. Yet publishers, who retain ownership in this scenario, have not traditionally considered themselves responsible for the longterm access and use of their products.
Over 70 percent of academic libraries have no plan for the longterm preservation and use of licensed digital resources.
Over 70 percent of academic libraries have no plan for the longterm preservation and use of licensed digital resources (Farb, 2006). This unfortunately contradicts a 1998 prediction by Research Libraries Group (RLG) members that while few institutions reported having policies or even codified practices for preserving borndigital and convertedtodigital materials at the time, virtually all those surveyed expect such preservation to be part of their operations by 2001 . Continued lack of planning may also indicate that institutions are more likely to develop plans for materials they actually own, and so as the proportion of licensed or rented materials in library collections grows, libraries are becoming less, rather than more, likely to develop preservation and access plans.
Ironically, despite the lack of planning, there is also widespread acknowledgement that the lack of archiving and perpetual access are serious problems. Respondents to this survey cited renting not owning, ensuring archiving of digital resources, and the unwillingness of publishers to guarantee and provide perpetual access themselves for whatever reason, while being unwilling to allow the institution itself to archive and offer access intrainstitutionally under the condition which [is] held during the subscription as among the most pressing problems currently confronting libraries.
Licensing and preservation over space and timeThe worlds digital heritage is at risk of being lost to posterity. Contributing factors include the rapid obsolescence of the hardware and software which brings it to life, uncertainties about resources, responsibility and methods for maintenance and preservation, and the lack of supportive legislation.
The United Nations Report Director General
Revised Draft Charter on the Preservation of the Digital Heritage, 2003.
Licensing poses major challenges for preservation, including technological, legal, and policy issues, that do not occur in traditional ownership models.
The increasing quantity of borndigital material, the rapidly changing technological environment, and the growing preference of users for digital information access and delivery are important technological challenges (Lyman and Varian, 2003; Friedlander, 2002). [D]igital information is driving the boom. Not only is digital information the largest type of data produced, but traditionally nondigital items such as books, music, films and medical records are being digitized at a rapid pace . In addition, the dynamic nature of digital information requires that to be effective, digital preservation must be ongoing and continuous: [p]reservation of digital materials is a continuous, active process (requiring steady funding), rather than a practice of benignly neglecting artifacts stored in a hospital environment, perhaps punctuated by interventions every few decades for repair .
There are new legal challenges to preservation over space and time. The duration of standard license agreements (one to five years) is relatively short, particularly compared to the permanent ownership of library materials, which historically has permitted what is in effect perpetual access. For example, the Wiley InterScience Basic Access License Agreement contains the clause: The Term of this License shall commence as of January 1, 2004. The License will be renewed on an annual basis upon payment of the subscription renewal fee at prices to be determined (John Wiley & Sons, 2005). The terms of the licensing agreement can change upon termination. Moreover, during the relatively shortterm duration of a license, a publishers portfolio of content can change for any number of reasons, including reasons not related to the license, as illustrated by the Taylor & Francis Terms & Conditions of Use statement:The Publisher reserves the right to withdraw from this Agreement any Journal or any part of any Journal in order to comply with any legal rule or court order, or if the Publisher is at risk of liability from the continued availability of the Journal or part of it.
Ownership provided libraries the right, as property owners, to determine how and under what circumstances their materials were used and made available for present and future users. License agreements, however, determine the terms and conditions of use and are enforceable by a court of law. Libraries can negotiate terms and conditions of use, but in contrast to straightforward ownership, libraries cannot unilaterally determine access, use availability, affordability, preservation, persistence or archiving of licensed content over space and time. The need for negotiation suggests that libraries must be prepared to develop new types of staff expertise, and devote more time and resources to the procurement process, than was required for simple purchase and ownership.
Another legal difference between the ownership and licensing models is the movement away from a system where access and use are governed by federal copyright law to a system where copyright still applies, but but only in cases where licensing has not been used. To further complicate matters, due to the dynamic nature of the technology and the market for information products and services, publishers are experimenting with a plethora of new business models related to licensing and costs. Libraries and publishers are just beginning to study and analyze the policy implications of the current environment; further research is necessary in this area.
Use and users: Implications for licensing for information access and use, particularly intellectual freedom, fair use and values of controlFreedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.
Benjamin Cardozo, Palko v. Connecticut, 302 U.S. 319, 327, 1937
Licensing of academic library resources and collections has significant implications for library users and for the library as an institution. Not only do license agreements affect the parties to the agreement; the terms and conditions apply to libraries authorized users as well. Authorized users are often defined in license agreements as students, faculty, staff and members of the general public that are authorized to use materials on the premises of the library regardless of location (CDL, 2004). No longer can libraries purchase materials and independently determine the terms and conditions for use of their books, journals, and other materials by their patrons. In the context of licensing, there are no guarantees related to rights of users or uses of information. Any existing rights granted under contract are negotiated on a casebycase basis, and renegotiated every two to five years. Everything is negotiable, including timehonored user rights and traditions, such as the right to read, quote, criticize, parody, and otherwise use in the creation of new work.
Licensing affects the rights of library users in four important ways. First, that license agreements frequently restrict access and use of digital information resources more extensively than does federal copyright law. License agreements do not routinely allow personal, educational, and noncommercial uses, such as fair use, and first sale.
Interlibrary loan and scholarly sharing must be negotiated on a casebycase basis. Second, license agreements routinely restrict preservation or archiving by individual users or institutions by specifically prohibiting systematic copying of the licensed content. Third, as libraries acquire more products (each requiring a license agreement), there could conceivably be multiple agreements affecting individual titles over time. It may be difficult, if not impossible, for users (and for the institutions themselves) to understand and follow multiple, conflicting license provisions. Fourth, the transformation of content previously available in another format into digital form could significantly effect the educational and research process.
Licensing and fair use
The fair use exception to a copyright owners exclusive rights has existed since the mid1800s. The earliest English version, the fair abridgment doctrine, provided for use rights beyond the limited exclusive rights of copyright owners to print, reprint, and vend books. In 1841, Justice Story, in Folsom v. Marsh in the Circuit Court in Massachusetts, expanded the notion of what constitutes copyright infringement and articulated the concept of what we know today as fair use (Folsom v. Marsh, 9 F. Cas. (No. 4901) 342 (C.C.D. Mass 1841).It is not only quantity, but value, that is always looked to. It is useless to refer to any particular cases as to quantity. In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work. (Story, Folsom v. Marsh, 1841)
In 1976, fair use was codified in Section 107 of Title 17 U.S.C. The statute currently provides:
§ 107. Limitations on exclusive rights: fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
17 U.S.C. § 107 (1994).
The final sentence of section 107 was not in the original version of that section but was added in 1992. Act of Oct. 24, 1992, Pub. L. No. 102492, 106 Stat. 3145.
The principle and criteria for fair use have always been applied on a casebycase basis rather than categorically or as an absolute defense to the otherwise exclusive rights of the copyright owner. Unlike the European authors rights law, fair use can be raised in relation to a large number of different factual circumstances, which the courts examine on a case by case basis according to the factors laid down in Section 107 . Assistant Professor Justin Hughes of the Cardozo Law School notes that fair use is about as far from a bright line test as statutory law should wander . L. Ray Patterson agrees, but argues that there is an underlying contradiction regarding the construction of fair use:Fair use is a derivative concept, derived from the concept of copyright of which it is a part. If copyright is a natural law right, fair use is a natural law concept, an excused infringement and a defense. If copyright is a statutory monopoly, fair use should be viewed as a limitation on the monopoly in the public interest, which means that it is an affirmative right, not excused infringement. The paradox is that while U.S. copyright is a statutory monopoly copyright, fair use is treated as a natural law right to protect that monopoly. 
Lawrence Lessig characterizes fair use as a classic example of the balance between the rights of copyright owners and the rights of the public to use copyrighted work for certain purposes and under certain conditions without obtaining permission in advance (Lessig, 1999).
In a licensing environment, there is neither a guarantee of the right of fair use or automatic exception to the copyright holders exclusive rights; all permitted uses must be negotiated.
Licensing of copyrighted digital information resources has further complicated the issue of what constitutes fair use. In a licensing environment, there is neither a guarantee of the right of fair use or automatic exception to the copyright holders exclusive rights; all permitted uses must be negotiated. For fair use to exist in a license agreement, it must be negotiated and agreed upon by the parties involved. While the implications of this change cannot be measured by this one study alone, present findings do suggest the need for additional studies and research.
Results indicate that only about one third of all standard publishers agreements provided for fair use meaning that twothirds of libraries that accept standard agreements asis will lose fair use exemptions (Farb, 2006). One commercial publisher who was interviewed saw no need for fair use in license agreements at all: Do fair use guidelines apply equally in print and electronic? In theory, no fair use = why we license. If licensed properly, more access than with fair use. (Farb, 2006) Although digital licenses could, in theory, offer more access than what is guaranteed under federal copyright law, the results of this study do not confirm this conclusion. Federal copyright guarantees and exceptions are not included in most standard publishers agreements. Libraries must scrupulously negotiate for fair use on a casebycase, licensebylicense basis, if they intend to preserve their patrons abilities to access and use information for their teaching and research, without specifically obtaining prior permission.
Licensing and intellectual freedomThe tendency of legal systems to treat information as property is creating threats to expression, particularly in the case of copyright and privacy.
Fred H. Cate 
The American Library Association (ALA) defines intellectual freedom as the right of every individual to both seek and receive information from all points of view without restriction (ALA, 2005). Michael Gorman includes intellectual freedom among his list of eight central or core values of librarianship and defines it as the state of affairs in which each human being has the freedom to think, say, write, and promulgate any idea or belief .
The U.S. Constitution suggests the extent to which licensing of digital information resources has consequences for intellectual freedom, in the First Amendment, the Copyright Clause (Article 1, Section 8), and the Fourth Amendment.
The Copyright Clause provides the following:To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries (U.S. Constitution, Article 1, Section 8, 1787)
The Copyright Clause provides the explicit purpose and objective of federal and governmental authority over copyright. In Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), the U.S. Supreme Court was asked to clarify the extent of copyright protection available to telephone directory white pages (Feist, 1991). Writing for the majority opinion in Feist, Justice Sandra Day OConnor observes that [t]he primary objective of copyright is not to reward the labor of authors, but [t]o promote the Progress of Science and useful Arts (Feist, 1991). She discusses the originality requirement and the inherent conditional users rights implied, if not explicit, in all copyright cases:
This Court has long recognized that the factexpression dichotomy limits severely the scope of protection in factbased works. More than a century ago, the Court observed: The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. (Baker v. Selden, 101 U.S. 99, 103, 1880).
We reiterated this point in Harper & Row:
No author may copyright facts or ideas. The copyright is limited to those aspects of the work termed expression that display the stamp of the authors originality.
Copyright does not prevent subsequent users from copying from a prior authors work those constituent elements that are not original for example ... facts, or materials in the public domain as long as such use does not unfairly appropriate the authors original contributions. (Harper & Row, 471 U.S., pp. 547-548).
Historically, the Copyright Clause was based on the English Statute of Anne, which specifically included in its title of an act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned to underscore the intent and purpose of the Act to encourage learning rather than to create a limited monopoly and new economic rights and guarantees for creators and publishers. In addition, the Statute required a filing of the notice of copyright, and, in later revisions, further required that copies be deposited in nine university libraries located throughout the United Kingdom.
The First Amendment also plays a role in intellectual freedom, providing protection from governmental interference in the free and unfettered expression of speech and ideas, and underlining the importance of this freedom to the building and sustaining of a successful democratic society.Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (First Amendment, the Bill of Rights to the U.S. Constitution, 1791)
The Fourth Amendment provides for the right of individuals to be secure in their persons, houses, and papers and to be free from unreasonable searches and seizures. The right to privacy and the freedom to read without governmental interference is a component of intellectual freedom derived from the First and Fourth Amendments taken together. Although privacy is not the focus of this study, it is an essential component of intellectual freedom, and future studies might explore the relation of privacy to copyright. The Fourth Amendment provides the following:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Constitution, 4th Amendment, 1791)
Taken together, the First Amendment guarantee of freedom of speech, the Copyright Clauses aim to promote science and the useful arts, and the Fourth Amendment right of citizens to be secure in houses, papers and effects provide the legal and historical authority for intellectual freedom. In addition to the U.S. Constitutional guarantees, Article 19 of the United Nations Declaration of Human Rights provides:Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek and impart information and ideas through any media and regardless of frontiers. (United Nations Article 19, Declaration of Human Rights, 1948)
L. Ray Patterson points out the inherent contradiction in creating what the founders thought were limited market and economic incentives to authors to create and make publications available, thereby promoting and encouraging learning, education, and advancement of knowledge.Thus, the problem of copyright today is how best to reconcile the interests of three groups authors, who give expression to ideas; publishers, who disseminate ideas; and, members of the public, who use ideas. 
In higher education, intellectual and academic freedom are fundamentally related. In 1940, the American Association of University Professors (AAUP) and the Association of American Colleges and Universities developed a statement on academic freedom for faculty:Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties (AAUP, 1940).
Libraries and educational institutions also have institutional interests in both academic and intellectual freedom. In U.S. v. Sweezy, Justice Frankfurter recognized the importance of the role of the university to determine its own future and intellectual autonomy:It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment, and creation. It is an atmosphere in which there prevail the four essential freedoms of a university to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study (Sweezy, 1957).
The National Education Association (NEA), the largest professional association of primary and secondaryschool teachers, with over two million members, and whose mission is to promote the cause of public education and advance the profession of education, defines intellectual freedom as:Intellectual freedom is a basic right of all citizens and essential to preserving American democracy. In the terms of the 1940 Statement on Principles of Academic Freedom and Tenure (endorsed by more than 100 professional and scholarly associations, including the NEAs higher education department in 1950, reaffirmed in 1985).
The NEA policy statement outlines the ramifications of intellectual freedom for society:
Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends on the free search for truth and its free exposition.
... Academic freedom is essential to these purposes and applies to both teaching and research. Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher and of the student in freedom in learning. (NEA Policy Statement Intellectual Freedom, 1985)
Stewardship is a core value that includes notions of mission, responsibility, integrity, trust, accountability, service, preservation and sustainability for future use. For college and university libraries, stewardship has been based on the possession, purchase and ownership of library materials and collections. Collection ownership provided important safeguards for libraries and their users, including the protections of federal copyright law (e.g., fair use, first sale and Section 108 exemptions for libraries and archives). In the print environment, libraries were passive stewards, preserving collections through the act of ownership and minimal conservation efforts, budget permitting; typically, only about 12 percent of a typical academic librarys budget was devoted to preservation (Kyrillidou, 2002). In a digital environment, preservation requires continuous and active commitment, additional resource allocation and longterm planning a new role for most college and university libraries as well as the need to commit greater financial resources in order to keep digital resources alive. Fewer than 25 percent of the survey respondents reported having a plan for digital preservation and longterm access of licensed content (Farb, 2006).
The results also suggest the growing reluctance of some college and university libraries to take on this expanded responsibility for digital preservation (Farb, 2006). Although publishers supply nearly 100 percent of their content in both digital and print formats, respondents reported spending over 35 percent of their collection budgets on licensed electronic resources; of those resources, over 60 percent are acquired in digital format only. Respondents further report that 60 percent of license agreements in 2004 did not include archiving rights and 55 percent did not include perpetual access (see Table 1).
Although publishers supply nearly 100 percent of their content in both digital and print formats, respondents reported spending over 35 percent of their collection budgets on licensed electronic resources; of those resources, over 60 percent are acquired in digital format only.
These results highlight the critical role of mission with respect to sustainability and longterm preservation and access. As Allen and Bishoff observe, most cultural heritage institutions are mission driven; their primary purpose is to support and promote the public good ... without such a plan, no cultural heritage institution can be sustainable, no matter how compelling its mission or treasured collections .
In light of the challenges and opportunities created by digital environment and licensing, college and university libraries must reconceptualize their stewardship roles and responsibilities, if they are to meet expectations of users and continue to support the knowledge and cultural heritage of the larger society. As the literature review for this study illustrates, most research and scholarship on libraries and digital licensing is written by legal scholars who focus on the implications of new copyright legislation, licensing, and technological controls on the reproduction of information. There is almost no literature or advocacy on a national level by library scholars and practitioners regarding problems of longterm access to and use of digital content, or how those problems may change libraries stewardship responsibilities.
Clearly, major academic libraries must study this situation and develop strategic planning, partnerships and collaborations to actively and continuously address the problem and identify possible solutions. It is unlikely, however, that past stewardship approaches will be as useful in the future. As economist Ted Bergstrom points out,University site licenses serve no logistic purpose, but are solely a fiscal instrument. In the case of journals owned by profitmaximizing firms, site licenses allow publishers to price discriminate more sharply than they could if they were forced to sell journal access to individuals. Consumers surplus of the academic community would be greater if libraries refused to purchase site licenses from publisher that set prices substantially above average cost. On the other hand, university site licenses increase the total benefit to the scientific community by purchasing site licenses from nonprofit journals. 
Bergstrom argues for a more customized form of stewardship, in which university libraries engage in site licensing for nonprofit publishers, but not for commercial publishers, in order to advance the welfare of the scientific community instead of serving the profit objectives of privatesector publishers.
The preservation imperativeIt is important to note, however, that virtually no staff or costs are currently attributed to activities related to the longterm preservation of electronic journal collections. 
As our vital records, entertainment, education and culture are increasingly created, accessed and used in digital form, the greater the preservation imperative. Preservation is essential for longterm access and use of any type of library content. Digital resources such as electronic journals, databases and Web sites are no exception.
Digital information can be more prone to loss and decay than print forms. The hardware and software are subject to rapid obsolescence. Digital license agreements frequently prohibit library preservation and archiving and provide no guarantees as to the accuracy, completeness or usability of the content. New digital rights management techniques can track, monitor, and control every use of licensed digital materials.
Research is underway which addresses technological issues and solutions related to digital longevity and preservation. However, little work has been done to elucidate the effects of licensing on preservation or longterm access and use of academic library collections. Much of the existing literature suggests that information glut and overload are more pressing problems than preservation. However, the results presented here confirm that preservation should be a central focus of future research in this area.
No guarantees for uses or usersFor now, negotiating equitable license agreements that include fair use provisions for faculty and students appears to be the only effective way to protect this fundamental public right in the electronic environment. 
In the predigital environment, libraries determined who, how and under what conditions users (e.g., students, faculty, and visitors) accessed library materials and services. Under the provisions of Section 109 of the U.S. Copyright Law, publishers and content providers had little control over how and to what extent lawfully purchased print materials were used in libraries, or by whom (17. U.S.C. Section 109). In addition, the ALA Bill of Rights has consistently held that books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation (ALA, 1948). Moreover, traditional published materials, such as books, journals, or video or sound recordings, typically carry the publishers imprint, which signals to the consumer or reader that the item is authentic and reliable. Because these materials are in fixed form, they are presented as complete works, and not easily modified or tampered with.
With digital materials, publishers and content providers can largely determine who, and under what conditions licensed materials can be accessed. Standard publisher license agreements introduce restrictions on access and use that are more extensive than what is allowed under federal copyright law, and provide no warranties of accuracy, reliability, or usability of the licensed content.
These changes constitute a potentially serious challenge to longterm access and use. Much more research is needed to understand how reliability, authenticity and completeness of content have shifted in the digital licensing environment. Best practices or standards might be more useful than additional legal warranties or liabilities for insuring reliability, authenticity, and completeness, for example.
Nondisclosure: Impediments to a librarys missionUniversities are not businesses (although they have many business-like aspects). They are highly unusual institutions with missions and attributes unlike those of any other entity in with the forprofit or notforprofit world. 
Nondisclosure also makes it difficult for libraries to negotiate or to standardize the licensing terms in their own interests and those of their parent institutions.
Towards a policy framework and agenda for longterm access and use of licensed digital informationMandatory licensing of the intellectual property rights of everyone who communicates via the Internet is a de facto change in copyright law that should not have been permitted without explicit policymaking attention. 
In the United States, there is no tradition of overarching information policy, or a national policy agenda related to information issues. Instead, in the U.S., policy challenges and opportunities shift according to the goals, objectives, and outcomes desired by various interests and players. In this context, what action is required to ensure longterm access and use of licensed digital resources in U.S. college and university libraries?
In the present study, libraries identified three key barriers to longterm access and use of licensed digital resources. First, current price and business models threaten the sustainability of existing academic library collections and may hinder growth in certain existing or emerging areas of research and scholarship. As just one example, electronic journal costs continue to escalate at a pace well above the consumer price index and price increases have a direct effect on collection size and scope.
Second, current licensing practices prohibit or severely restrict certain basic library functions, such as preservation and archiving. Unless licensing agreements begin to give libraries, archives and other cultural heritage institutions the rights to preserve and archive licensed material, the continuous availability of and access to recorded knowledge may be in serious jeopardy.
Third, digital archiving must become a national priority. As this study indicates, U.S. college and university libraries have barely begun to plan for longterm access and use of licensed digital resources; they must collaborate to establish robust standards, reliable resources and clear responsibilities for ongoing digital preservation.
These trends are likely to accelerate. Lynne Brindley, Chief Executive of The British Library, frankly states the imperative for libraries:We simply do not have the luxury that our predecessors in their curation of printed materials enjoyed, of being able to rely on benign neglect as a plank of our digital preservation strategy. Action has to be taken at the outset to ensure viable and sustainable access to digital content. (Brindley, 2000).
In conclusion, licensing of digital resources, as currently practiced has significantly affected the librarys traditional stewardship role, and has begun to displace timehonored and federallyprotected educational and noncommercial uses of information, such as fair use, preservation and archiving. Hopefully, these initial findings will provide a starting place for discussion, further research and action which will include benchmarks and frameworks for keeping all stakeholders informed, so that scholarship created today will be preserved and endure for generations to come.
About the author
Sharon E. Farb is the director of Digital Collection Management and Licensing for the UCLA Library. Sharon holds a J.D. and Ph.D. and her research interests focus on the intersection of key legal and policy issues affecting libraries, archives and cultural memory institutions including intellectual property, privacy and intellectual freedom.
Email: farb [at] library [dot] ucla [dot] edu
Special thanks to the libraries and publishers that participated in the study. Thanks also to Marjorie Rauen for her always helpful comments and suggestions, to Carol Nishijima for her expert editorial assistance and to NL for being you.
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Libraries, licensing and the challenge of stewardship by Sharon Farb
First Monday, volume 11, number 7 (July 2006),