An IP Practitioner's Perspective

Sarah E. Sully
General Counsel
Director of Publisher Relations

D-Lib Magazine, January 1997

ISSN 1082-9873

JSTOR is a non-profit organization established in August, 1995. JSTOR's initial objective is to develop a trusted electronic archive of core scholarly journal literature, with an emphasis on the retrospective conversion of the entire backfiles of key journals. We have chosen to scan these backfiles, combine the scanned images with an OCR created text file to support searching, and make them available to libraries and scholars via the Internet. Our database currently stands at about a million pages of material from seventeen journals, and is located on two mirrored servers, one at the University of Michigan and one at Princeton University. JSTOR began with a test phase during which access was provided to first five then twenty university sites in the United States, and our software and user interface were refined. The database is now available to libraries generally, and the initial response from both users and libraries has been very encouraging. A great deal of information about the project is available at our website: http://www.jstor.org.

As with any enterprise, JSTOR is about finding solutions to problems. But, at least from the point of view of an attorney coming from the high-stakes corporate world, the goal of the solutions sought at JSTOR is unusual. As a non-profit organization, profit maximization is not our holy grail. Nor are proprietorship and confidentiality concepts that we spend a lot of time worrying about. (My own "product" is freely shared: the JSTOR library license agreement is available to all on our website.) The overall goal of JSTOR is to serve the academic community by building a reliable and comprehensive archive of journal literature, thereby reducing storage costs for libraries, addressing preservation issues, and improving access to the literature. We endeavor to learn as much as we can, to incorporate what we learn into our procedures, and to share what we learn with others.

I came to JSTOR in July, 1996 from the intellectual property department of Skadden, Arps, Slate, Meagher & Flom, a humongus New York City law firm. I had landed in the computer sub-group at Skadden, and had had an opportunity to work on a wide variety of both corporate deals and litigations involving late-breaking technologies, in addition to myriad intellectual property (IP) puzzles and conundrums. During my time at Skadden, I got to observe some very creative minds at work. Some of the most inspiring attorneys, in my opinion, are those that can come up with innovative ways around obstacles, whether in the heat of a head to head negotiation, or in the written terms of a deal.

This experience has proved valuable at JSTOR, where we find ourselves in the interesting position of seeking solutions for constituencies that are sometimes at odds with one another, namely, publishers of academic journals, libraries, and the users of our database. It is exciting to try and craft provisions that satisfy these opposing interests; to find a middle ground that works. Among the results of these efforts are two concrete documents: our publisher agreement and our library agreement. Following is a discussion of some of the key issues that were raised in the process of negotiating these agreements.

Publisher Agreement

We have reached agreement with participating publishers to include each journal's back issues in JSTOR. How to define the "back" issues? A "moving wall" approach was devised - we start with the very beginning of a journal's run (in some cases well back into the last century), and let the publisher tell us how far forward to go. For example, if the publisher specifies a moving wall of five years, we include all issues up to five years ago, and move the journal forward in JSTOR one year at a time, maintaining the five year lag. One purpose served by the moving wall is to provide assurance to libraries that they can rely on the archive into the future. For those publishers who are mounting an electronic version of current issues of their journal, we will work with a "fixed wall," ending the run of issues included in JSTOR at the point where the publisher's electronic issues begin. However, should the publisher ever decide to drop any issues from its own electronic archive, we require that those issues then be included in JSTOR.

Researchers ultimately will not be content to search only journals published more than five years ago, or to have to submit separate searches for recent and older materials. The capability to conduct a search in either the current or archival database of a journal, and to have that search seamlessly carried out in the entire published run of the journal, will be of enormous scholarly value. It is our intent to work with publishers to develop effective linkage between the archival issues and the electronic versions of current issues to make this possible.

From a copyright law standpoint, it is not our contention that publishing a journal in JSTOR constitutes the creation of a new work. Our approach is image-based, and our goal is faithful replication of all issues of the journal, from cover to cover, including advertising material, membership lists, or any other miscellaneous content. As specified in our publisher agreement, the publisher owns the copyright rights in the digitized images that we create. In order for JSTOR to serve as a reliable archive, however, we must offer permanent access rights to libraries. Therefore, we ask the publisher to grant us a perpetual license to the digitized archive that we have created. If the publisher were to withdraw from JSTOR, this perpetual license is limited to the right to provide the archive only to those libraries that were participating in JSTOR as of the date the publisher terminates our agreement.

The JSTOR publication license is nonexclusive - publishers can license others to digitize the back files of their journal if they so choose. It is also royalty-free, although to the extent that our revenues from participating libraries exceed our costs we will make distributions to participating publishers. Finally, we do not ask that publishers commit to us for a fixed term. Instead, we agree that either party may cancel on six months' notice. This cancellation provision imposes a present discipline upon us; it means that we must continue to be responsive to publishers' needs as well as to those of libraries and scholars.

Library Agreement

Probably the hardest issue that we faced in drafting a library license agreement was how to address the difficult question of interlibrary loan (ILL). We had listened to publishers tell us that ILL is rampant and out of control, how libraries are not obeying the "rules," (Section 108 of the Copyright Act and the related CONTU Guidelines), that the procedure undercuts current subscriptions to journals and is basically a huge disaster. We had also listened to libraries tell us that ILL is a right granted from on high, is limited and controlled, and that everyone is following the rules scrupulously. We had to propose some compromise or neither side would have been willing to work with us. With the help of friendly hardliners from each camp, we molded and negotiated a clause that offers something to both sides. Libraries are permitted to engage in ILL for two years with materials that are printed from JSTOR, but not with electronic copies. Libraries are required to keep records of their use of JSTOR materials in ILL. At the end of two years, we will all catch our breath, examine these records, and see just how extensive ILL really has been. In the meantime, publishers will have had access to the digitized archive of their journal through JSTOR as well. We will provide access to publishers in the publicly accessible area of our web site. It is possible that provision by publishers of materials directly will obviate the need for ILL over the long haul.

Other aspects of our library agreement also reflect our goal of finding workable compromises between competing interests. In an effort to make the JSTOR database as useful as possible, we offer libraries a broad definition of "Authorized User." The agreement is basically a "site license," meaning students, faculty and staff can access the database remotely, but we also include in the definition of those who may use JSTOR anyone physically present in the library. In this way, we accommodate public repository libraries.

We hope to work with libraries collaboratively in many ways. For example, there is much to learn about the usage of the archival issues of these journals, and much of this learning will require cooperation and input from libraries. We intend to work together to establish effective links into the database to increase its usefulness. We will undoubtedly be cooperating as technologies evolve and means of protecting access to the database change.

The JSTOR user agreement is standard in many ways, consisting of the typical online shrinkwrap terms with which we have all become familiar. In a bow to the needs of today's students and researchers who may wish to carry a copy of something on diskette home for the weekend, we offer the right to make one electronic storage copy of any journal article in addition to one printed copy.

Next Steps

These initial decisions enable us to move forward with publishers and with libraries. But the environment is fast-moving, and our decisions must be constantly tested, challenged, and modified as necessary. We are now turning to new questions and issues, and are working to devise and test possible answers.

One interesting aspect of JSTOR is that our software development and production offices are located on university campuses. There are a lot of positives in this relationship: we benefit from the heat of the research environment, and students and researchers are able to work on a real-world endeavor. We remain committed to working within this community. At the same time many interesting questions arise due to this arrangement, from IP ownership, to devising an effective management structure, to imposing a production schedule on an academic setting.

On the technical side, we decided to combine the use of images to display the pages of journal literature with the use of a text file created using OCR to facilitate searches of the material. Key factors contributing to this decision were the need to display non-textual material accurately, the importance to both libraries and publishers of faithful replication of the journals, and the economic realities we face in providing access to hundreds of years of backfiles. While we believe that this approach offers the best of both the image and text worlds, we recognize that this choice does not come without some costs. Our technology group is working hard to reduce, if not eliminate, the performance differential that exists between images and text. Every effort is being made to reduce download and response times for use of the database. JSTOR has developed helper applications to allow users to print articles on their printers at a variety of resolutions, including an archival quality 600 dpi version. An extremely promising development is the availability of new compression technology from Cartesian Products Inc. that appears to reduce the size of the JSTOR database by a factor of 6 to 7 times as compared to Group IV TIFF.

From our inception, it has been anticipated that JSTOR would be a resource of great value not only in the United States, but around the world. Given the state of the Internet, and the difficulty encountered by users overseas in trying to access U.S. sites, it will be necessary to develop mirror sites in geographically dispersed locations. This will present both technical and legal challenges. Our original database was built at the University of Michigan, and we now have a mirror site located at Princeton University. We are developing and implementing processes for keeping the data synchronized and for balancing the load between the two sites. The legal terms by which we will accomplish provision of JSTOR to non-U.S. libraries present interesting issues given the vagaries of IP regimes internationally and the unsettled nature of online law generally. We hope to develop relationships with individuals and entities abroad to help us stay abreast of changes in the legal, political and regulatory landscape.

JSTOR is off to an auspicious beginning. We are taking steps into new territory, technical as well as legal. At the same time, as a small organization in an industry that is changing by the nanosecond, we must also practice patience. We are trying to learn as much as we can about the issues of importance to us, and to make educated decisions based on collective experience. As Elton White, one of JSTOR's board members puts it, we strive "never to get our spending ahead of our learning." Success will depend upon our ability to remain open to change; to continually refine our decisions as we learn.

January 3, 1997

Copyright ©1997 Sarah E. Sully

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