May 22, 2015 NISO Patron Privacy in Digital Library and Information Systems http://www.niso.org/topics/tl/patron_privacy/

1. What language on privacy could or should be
in e-journal licenses
NISO Patron Privacy Project Virtual Meeting
May 22, 2015
Alan Rubel, J.D., Ph.D.
Assistant Professor
School of Library and Information
Studies
Program in Legal Studes
University of Wisconsin, Madison
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Mei Zhang,
Ph.D. student
School of Library and Information
Studies
University of Wisconsin, Madison

2. The Data
• 216 licenses received via open records request
by Berstrom et al (2009)
• Repetition within data set, and emphasis on
later licenses
• Sampled 42 licenses from 10 publishers
governing access in 2007-09
• 30 commercial licenses (7 publishers)
• 12 non-commercial licenses (3 publishers)

3. Two Categories
1. Enforcement of authorized uses
– Authorized use
– Monitoring
– Notification of unauthorized use
– Cooperation with investigations
2. Data collection / sharing
– Data collected
– Shared with third parties
– Sent back to libraries

4. Policing Authorized Use
Total
(N=42) Total %
Defines authorized user 38 90.5%
Suspends authorized user access based
on violation of license
4 9.5%
Suspends based on IP address 7 16.7%
Licensee provides publisher with IP
addresses
32 76.2%
Licensee notifies publisher of
unauthorized use
34 81.0%
Licensee monitors for unauthorized use 16 38.1%
Licensee takes disciplinary action when
aware of unauthorized use
18 42.9%

5. Problematic provisions
• Reserve for the licensor the right to monitor access “to detect misuse
of [publisher’s] content.”
• Licensee shall maintain and share records of authorized users and
their access details
• “Full and up-to-date records of all Authorized Users and their access
details…shall be provided to [the publisher] upon request”
• Licensee shall “cooperate” or “cooperate fully” with publisher’s
investigation of copyright infringement and unauthorized use.
• Licensee shall use all reasonable endeavors to monitor compliance,
and report any unauthorized use or breach.
• Licensee will take disciplinary action or even terminate the access
when it becomes award of unauthorized use.

6. Examples of attractive provisions
• “Licensee does not have the ability to monitor or to
control actual uses by authorized users of the
information from the licensed materials or to notify
authorized users of all the restrictions on the use of
information in this Agreement.”
• Not construed as “unauthorized use” per CFFA.
• Opportunity to correct before enforcement/
disciplinary action. See Lipinski p. 451.
• “Cooperation” will not include cooperation for the
purposes of disclosing, suing, or prosecuting users.
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7. Data Collection
Total
(N=42)
Total %
Non-IP data collected by publisher 28 66.7
Reasons for data collection listed 9 21.4
Deletion of data specified 33.3 2.4

8. Data to 3rd Parties
Total
(N=42) Total %
Contains terms regarding whether
publisher shares data with 3rd parties
14 33.3%
Will provide data to 3rd parties 9 21.4%
Specifies type 3rd party 4 9.5%
Will NOT be provide some data to 3rd
party
13 31.0%
Will require 3rd party to comply with
license’s confidentiality provisions
1 2.4%

9. Concerns
• Silence regarding data sharing with third
parties results uncertainty in:
• Whether or not publishers will share data
with third parties;
• What types of data publishers will/will not
share with third parties;
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10. Suggestions for provisions
• COUNTER-compliance
• The deletion [of collected data] will occur
“when [such data are] no longer needed”
• Publisher may not share with third parties
either raw usage data or data that can identify
individual users.
• Specify the reasons that non-IP address
information is collected.
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