Information professionals often face uncertainty when dealing with electronic sources. This is understandable: the law moves quickly in many areas, but technologies are developing with such speed in these times that the law is struggling to keep up. This places the information professional in a difficult position: they are obliged to keep up with developments to keep her everyday practice legal.

The advent of the Internet has created new challenges. Copyright holders once baulked at the introduction of the photocopier, but the potential for distribution of materials without the copyright holder’s permission has multiplied many times with the world’s rush onto the Web and swift acceptance of email. The Internet has also broken down boundaries, made it possible to disseminate information swiftly to recipients in many countries at once. Many countries means many jurisdictions, and here uncertainty arises again, because what is perfectly legal in one country may not be legal in another.

Clearly the information professional needs to be conscientious and careful, but how much so to remain legal? They are only liable for breaches of the law if they help the offence along; are aware, or could be expected to be aware, that something illegal is occurring; and if they can exert control over any abuse that is going on.

Copyright is the obvious area of law affecting the information professional: she can be expected to be aware of the latest developments in the area. The majority of information in electronic form will be subject to copyright. When billions of pages of information are posted openly on the Web, or otherwise made available electronically, just when is copyright breached? Implied licence is a tricky area. Just because an article is available freely on a newspaper’s website, doesn’t mean it’s legal to print or email 100 copies to interested parties. It has long been held that copyright is breached when a “substantial part” of a piece of intellectual property is copied, and this remains as true for electronic information as for printed. Libraries have traditionally taken advantage of terms such as “fair dealing” and the “private research” exceptions to copyright. The implementation of the Copyright Directive in the UK will certainly change this, and make the waters even murkier. It is certain that from December 2002 commercial research will no longer be an exception to copyright.

There are other copyright issues to be aware of, more specific to the development of the Web. When is linking permissible? What about framing content from other sites within your own site, or deep linking, or liability for content that you are linking to? There is no absolutely safe position on any of these issues. Case law is slowly emerging, but plenty of room for interpretation still exists. The best way to remain safe in these areas is to obtain, and then retain, the explicit permission of the copyright holder in all cases.

The Copyright Directive is the high profile development in UK copyright law at the moment. The profession as a whole has a responsibility to debate and lobby on the issue, and little time remains: the Directive must be implemented by 22nd December 2002.

The major influences of the Directive are likely to be restrictions on what can be published on the Internet, a reduction in fair dealing and library privilege, and the introduction of criminal penalties for bypassing or deactivating copyright management measures.

Copying for commercial purposes will no longer be acceptable. The information professional will have to exercise a degree of sense in deciding when this is the case, but cannot be expected to be accountable if abuse of copyright by the end user could not be reasonably foreseen. There is an onus on the user to make an honest declaration about the use to which the copying will be put, and if the reason given at the time of copying is within the boundaries of copyright law the information professional can be seen as fulfilling her obligations.

The removal of the exception does have some other implications for organisations. Will there be cost issues? Copyright owners will get higher fees, but the Copyright Licencing Agency (CLA) maintains that the pricing of its licences will not increase as a result of the Directive. As such, the blow is softened for organisations that already have a licence. If the CLA keeps its promise, the rise in costs will not be as drastic in law practices as it will in academic institutions. Doubtless many organisations will be spending some considerable time in licence negotiations though. Libraries will also feel change on an administrative level: notices, policies and declaration forms will need to be redrafted to take account of the changes. The patrons of an information centre will be looking to the information professional for guidance.

Copyright may dominate the librarian’s thoughts when looking at the law surrounding electronic information, but there are other areas to consider. Defamation has made for some high profile cases recently. Libellous emails and Web postings potentially have a very big audience, and any defamed individual or organisation is going to want to stamp down on these very hard indeed. Just as technology makes it possible to spread the offending words far and wide, it also makes it easy to trace back to source, so there is a need to be very careful in not issuing or inadvertently hosting defamatory materials. Web hosts are being forced to more actively police contributions to their Websites, as a duty of care exists even if the material is coming from an otherwise disassociated source. Of all the defences an organisation could put up against a defamation action, the best option is always going to be to avoid the action in the first place. Measures to achieve this could include a policy of immediately withdrawing offending material if challenged, providing an appropriate complaints channel, taking insurance, and knowing a good lawyer!

Data protection is an area of law that information professionals should be aware of, although it will affect some libraries and information units more than others. A library may hold, for example, certain details about their users for contact purposes. This information should be collected and held in compliance with existing data protection rules. The information should be secure and accessible only to authorised individuals.

Professor Oppenheim went on to mention some other areas of interest, including developments in anti-spam legislation; vicarious liability (whereby an employer is liable for the actions of an employee going about his duties, even if the employer is unaware of what is happening); and the employer’s right to look through the contents of its employees’ emails.

In conclusion, electronic information presents a legal minefield, and any information professional would be well advised to look into insurance cover, or to at least read a good book by a reputable author (and what better opportunity could there be for a shameless plug of Professor Oppenheim’s Legal and regulatory environment for electronic information (Infonortics, 2001)).

Julian Hope of Outsell Inc was our second speaker for the evening, and he took a close look at contractual issues affecting information professionals.

There are many things that a company will take into account when selling its products, and these all to an extent have an influence on the way in which contracts are arranged.

A vendor may have to sell its product to clients across a number of sectors, each of which will have its own particular needs and emphases. Even within sectors, individual companies have their own requirements. One company may prefer a certain access and charging model, functionality, delivery frequency, subject and geographical coverage and so on, while its next-door neighbour could prefer something entirely different. Clients are also increasingly demanding that suppliers deliver content that can be moulded and integrated into whatever format suits them, be that placing it into their own applications or delivering it through an intranet.

This all means that there will never be a “one size fits all” model contract. Pricing, protective clauses, ancillary charges, licensing models, use and redistribution rights, cancellation terms and contract periods all need to be looked at closely.

Many vendors’ standard terms and conditions are unlikely to be drafted in such a way as offers sufficient legal protection. Larger organisations may have sway to get contracts rewritten before they sign. Smaller organisations should at least be aware of what they are signing up to, and try to negotiate any terms and conditions that seem inappropriate or disadvantageous.

Terms should be pored over with a fine toothcomb: it should not be taken for granted what one can and cannot do with a service, just because certain activities might be considered “standard practice”. Make careful note of what the contract indicates should happen if a breach were made by either party.

What are the licence rights? Are you confident that the supplier has the sufficient permissions to allow you to do with the content everything that it is promising you can do. What happens if that is not the case? Is there some kind of insurance if you find that routine use of the service leads to unwitting breach of someone’s intellectual property rights?

Termination periods should always be considered. Often it is written into a contract that the subscription will be automatically renewed at the end of term unless the vendor is otherwise notified. The notice period may also be very long. There is no reason why this should be the case, why the subscription should not automatically be renewed. There should be some room for revision of long cancellation periods as well.

If you are striking a deal whereby your comments or company logo can be used for product advertising (in exchange for a reduction in the subscription charge for example), make sure that it is clearly stated in the contract how your details can and cannot be used.

There should also be a clear statement in the contract about service standards: technical requirements and support and maintenance coverage. This should all be in place to ensure that when the contract is signed the product will live up to all of the promises made by the vendor.

Both Julian’s and Charles’ addresses caused much debate amongst the gathered delegates at the post-talk drinks and nibbles. Comments such as “put the wind up me” and “frightened the life out of me” were not uncommon, and to an extent this was the purpose of the event. At the end of the day, everyone was able to take away something that could be used to improve their working practice and to do so in a way approved of in the eyes of the law!