As you may recall, the “leaked” news of the impending change in OCLC’s “Policy for the Use and Transfer of WorldCat Records” caused quite a stir in the library community. During this stir there was a lot of speculation on what the change would mean to libraries and other interested parties. While I had some of my own speculation, I decided to take a wait and see attitude about the changes themselves. Really, I, and I am sure others, were originally most concerned about was the way OCLC originally planed to implement these changes. Not to say that we weren’t concerned about what the new policy would mean, but I was reassured by some people from OCLC that the change weren’t all that bad. While they (understandably) wouldn’t say what any of the changes were I took there reassurance as a positive sign. This combined with Karen Calhoun’s e-mail to AUTOCAT led me to be not as worried as I originally was when the news first broke.
The new policy was posted briefly on Sunday but has been taking down because OCLC is “reconsidering some aspects of the policy”. More information will be available in the near future but considering that OCLC has left the FAQ and Summary up, it is reasonable to expect the new policy won’t change drastically. Dan Scott, among others, archived copies of the policy as posted on November 2, so we can see what OCLC is reconsidering. I am not really sure what to take from the withdraw of the posting. If they were hoping for constructive feedback, they should have left it up and issued a public request for comment.
Assuming my assumption is correct that the policy won’t change drastically as OCLC reconsiders, what will the new mean for libraries? The Summary of the Policy for Use and Transfer of WorldCat Records says we are free to:
- To use, reproduce, incorporate into works and display WorldCat records.
- To transfer WorldCat records of you own holdings.”
Under the following conditions:
- Noncommercial use
- Noncommercial transfer
- Reasonable Use
(see the Summary for how OCLC describes each of these).
The old policy, at least the way I read it, allowed for non-commercial transfer before. So what is new or different? First thing I noticed is this policy is definitely clearer than the earlier one. That is without question a good thing. Of course, if the policy is clear but severely restricts usage, that would be an issue. So what are the restrictions that the new policy puts in place? First, the restrictions on internal library non-commercial use are minimal. Basically, libraries can do pretty much what they want with WorldCat records INTERNALLY for the library as long as it is for “reasonable” non-commercial use. More on reasonable use latter on.
But before we go on, what appears to be the reason for this new policy. For that, I think the best analysis I have seen thus far comes from Terry Reese. Terry believes that:
essentially OCLC is looking for a way to tell libraries that they don’t own the data that’s in their own catalogs. In essence — this is what this policy comes down to. The policy wraps some very nice changes for non-members into the statement in order to hide some really sucky changes that I don’t believe that they have the ability to ask for or enforce.
While the new policy doesn’t do much to restrict internal library use, since OCLC can change the policy at any time, (and judging from this new policy, thy believe they can change the rights retrospectively) this should concern libraries. Basically it is saying members libraries do not own the data they have created and/or paid for (WorldCat records are not free to member libraries).
We start getting into more significant restrictions when transferring records outside of the library. In order for a member library to transfer records, they must 1) provide Attribution, 2) not modify the OCLC number or remove the link to this policy (Modification Restriction), and 3) commercial transfer is prohibited. Both the Attribution and the Modification Restriction are aiming at the same thing… making sure the user knows where the records come from and what the use restrictions are. That, in of itself is not a big issue to me. As Eric Childress points out, many Open Source Software licenses, including the GPL, have similar requirements. The non-commercial use is not a new restriction. Although I’d prefer the non-commercial use restriction not to be there, I can understand why OCLC would want it.
What is new, as Ed Summers points out, is the viral nature of this restriction. I.e. if I give my records to a non-OCLC member, they will have to follow this policy as well. The new policy, makes it so that (without a separate agreement with a OCLC) a non-OCLC member “may transfer WorldCat Records of its own holdings to OCLC Members and Non-OCLC members under separate agreement with OCLC.” In other words, without a separate agreement with OCLC they can not transfer records to anyone – for commercial or non-commercial uses. This, along with the “reasonable use” clause is a significant restriction to the use and transfer for non-OCLC members that obtain WorldCat records. This also means a small public library that gets there records via Z39.50 from member libraries can not share them – not even to patrons for personal use. Non-OCLC Members that have WorldCat records will have to shut down Z39.50 and similar services unless OCLC decides at their “sole discretion” to allow this on a case-by-case basis. This is a significant restriction on current use and I hope it is one of the things OCLC is reconsidering.
Another significant aspect of the new policy is the idea of “Reasonable Use.” The summary describes Reasonable Use as:
Use must not discourage the contribution of bibliographic and holdings data to WorldCat or substantially replicate the function, purpose, and/or size of Worldcat.
This, along with the viral restrictions, is probably one of the biggest things in the new policy. Some commercial library automation vendors have discussed the possibility of creating a shared database of holdings for people that use there software. While there are different ways this can be done, it seems clear that this restriction would make it very difficult, if not impossible, to do, even if a separate non-commercial entity was created for this purpose. As Terry Reese points out what I s at stake here is the ability for libraries to create network-level discovery services (outside of OCLC anyway).
One question I do have is where does this leave the Open Library? It is a little unclear from the policy to me. Certainly the Open Library is non-commercial, but does the Open Library “discourage the contribution of bibliographic and holdings data to WorldCat or substantially replicate the function, purpose, and/or size of Worldcat.” For an answer to this, I looked at the FAQ, but things still are a little unclear to me. The FAQ does say that building a cataloging service using WorldCat records would be a no-no. This seems to imply to me that the Open Library could not make records obtained via WorldCat after this policy goes into effect available in Z39.50, OAI, or direct download. I.e. Replace the Function. I am not sure that is a goal of The Open Library, but if it is, they will no longer be able to provide access in this way to records that came through WorldCat. Purpose is an interesting because issue because what is the purpose of WorldCat? I looked at the WoldCat FAQ and the WorldCat web site for an answer and didn’t really come up with a purpose statement. Sure, it’s purpose is to help libraries catalog (which is covered by the function restrictions), but is it more than that? It seems to me the purpose can also be said to include the display the holdings of individual libraries. In that regard, there is a difference in purpose with WorldCat and Open Library. WorldCat is interested in holdings were as Open Library wants a Web page for every book, whether it is in a library or not. Or as the Open Library puts it:
A major difference between OCLC and the OpenLibrary is that OCLC is building a catalog to share among libraries, while OpenLibrary is building a catalog to share with the public, with the hope that this will get more people involved in using libraries.
Thus, you can say that Open Library does not have the same purpose. I think where they might get in trouble with using WorldCat records obtained after this policy goes into effect is if they start trying to offer a service that displays holdings information. While I think that this policy might not necessarily kill off Open Library’s use of WorldCat records, Tim Spalding disagrees and a commenter, infiniteletters, on Tim’s blog believes it will also kill off “a lot of these international library catalogs too, such as Cooperative Online Bibliographic System and Services (COBISS)“. However, even if WorldCat’s terms allowed Open Library to use the records, would Open Library even want these viral records? It is my understanding that they want records without use restrictions.
The other restriction is size. The scale of the collection is important factor. I assume they put that in so that someone doesn’t collect WorldCat records in order to create a national or international union catalog with records that have passed through WorldCat. My assumption is that this would then, in turn, mean that using WorldCat records to create smaller union catalogs, such as SUNY Union Catalog would be permitted. However, that is not really clear. Certainly I think such a use would follow the defined intent of the policy. Eric Childress says that OCLC’s “intent is to be generous in granting exceptions for uses that are consistent with the overall intent of the Policy.” However, it also would compete with Local WorldCat so maybe they wouldn’t permit it. OCLC has made a request form for clarification available, so if you are not sure if your transfer is permitted, you may want to fill out the form and ask them. Whatever you do, don’t take my word for it as I am not a lawyer.
OK, so what does this all mean for OCLC member libraries? Well, I think for current day-to-day cataloging operations, probably not much. No matter how enraged a library is about the policy, what could they do? I don’t see many libraries pulling out of OCLC because of this because they are the only game in town. Some commentators in the library blogosphere are using the”M:” word. That’s right, Monopoly. It is hard to argue that OCLC isn’t a monopoly. Where else can we go for this type of service since they have gobbled up RLG? The new policy as currently written restricts our future options. Basically, we will not be able to replace OCLC WorldCat with any thing, non-commercial or not, to cooperatively share records – at least not retrospectively. It would have to be started off with a “clean slate” of records. Libraries who got records that somehow passed through WorldCat could not cooperatively share them without OCLC’s permission. I am not sure you can blame OCLC for wanting to do that, but it does create a huge vendor lock in issue – and one that I wonder would pass a legal challenge if someone decided to bring OCLC to court under Monopoly laws.
It also means that libraries may need to be vigilant about who is using their Z39.50 and other standard protocols to access records. In the FAQ, OCLC does not tell members to turn off these services, or even actively monitor them. However, if we become aware that someone is obtaining records from you this way for commercial purposes you will have to act. The FAQ basically asks you to e-mail them describing the situation which seems reasonable enough since it would be impossible to cover what a library should do in each individual instance of such an abuse. However, if someone or some organizations starts trying to harvest records from hundreds of libraries, this may become a bigger issue. Lets hope that doesn’t happen in any large scale manner. As already pointed out, non-OCLC members would have to turn off Z39.50 to meet the letter of the policy.
Related to this is that commercial software that smaller libraries use to search other library catalogs to retrieve records may become more expensive or choices may become more limited. I say this because one of the questions in the FAQ asks “My commercial company offers an option for users to search catalogs of libraries an use or download records that originally came from WorldCat.Is that OK under this policy?” The answer in the FAQ is “No. You will need to establish an agreement with OCLC first.” I am assuming that the world “commercial” is not in there by accident and this won’t directly effect Open Source projects. However, there are a number of commercial companies that support Open Source Software that can do this (such as the Koha through its cataloging module) and they may need to sign an agreement with OCLC. This will also effect commercial companies that offer Z39.50 service. For example, the way I read this FAQ, EndNote will not be able to offer pre-configured Z39.50 search targets of libraries that use OCLC without an agreement from OCLC. This is furhter backed up by Terry Reese being asked, even previously to this policy, to “limit the Z39.50 functionality so that it didn’t become a free Bookware like program.” This may make it harder for our patrons to get content into personal citation managers. I am not really sure how enforceable this would be, but it may be an issue.
I am concerned about how this policy, as written, effects are ability to send records to III for use in Encore or to another commercial vendor that offers a commercial resource discovery product. If you are operating the server locally, it may be less of an issue because you are not necessarily transferring the records. However, if they are are using a hosted solution, my reading of this policy is that it would be considered a commercial transfer. The way I read the policy it disallows any commercial transfer. Commercial use is defined very liberally and I believe the policy, as written, does not permit us to do this unless OCLC signs an agreement with the vendor allowing this use. I doubt that this is the intent of this policy, but it is the wording. My fear is further enhanced by the question in the FAQ that reads “”My commercial company offers an option for users to search catalogs of libraries and use or download records that originally came from WorldCat. Is that OK under this policy?” The answer in the FAQ is basically no: “You will need to establish an agreement with OCLC first.” I would assume that OCLC would be more than willing to allow this for one library, however if OCLC doesn’t offer a blanket clarification that this is reasonable use, libraries will need to ask OCLC for permission to do this with their records. It will be interesting to see how this turns out. If a commercial entity was offering to create a union catalog for a local organization using something like Endeca or Encore would it be allowed? The way I read the policy I say it wouldn’t be allowed unless OCLC offered the commercial entity an exception. Since such an exception would on some level compete with OCLC’s Local WorldCat product, there could be questions raised.
What will happen from here? It depends on what OCLC reconsiders and changes from the policy. Taking into account Eric Childress’ comment that OCLC intends to be generous with exceptions along with the earlier e-mail from Karen Calhoun that says one of the intents of the new policy is to “Expand the opportunities for record sharing among members and non-members”, I am hopeful that they are reconsidering a lot of what I and others find objectionable and that when the re-release the policy there will be improvements. At the same time, I am sure the policy won’t be everything I hope for which would be to have a truly Open WorldCat. I know OCLC believes that it is in the best interests of their members to restrict access, but I disagree. Libraries are in the business of providing information (usually for free), not in the business of restricting access to information. If OCLC goes too far with restricting use and transfer of WorldCat records we may see a legal battle ensue (which may be a small part of the reason for the reevaluation). Besides the afore-mentioned monopoly issues there are other legal questions. Is OCLC in a position where it has the rights to put restrictions on records created by public employees? Are MARC records even copyright-able in the first place? Whatever ends up happening, it will be interesting.