The Information Broker and Intellectual Property Rights

by Stephanie C. Ardito

A heated exchange took place on CompuServe's Working From Home Forum when a member of the Association of Independent Information Professionals (AIIP) became incensed over a non-member's remarks about information brokers. Essentially, the non-member asked how to find specific data that he needed, a not easily answered request. Some of our members recommended resources; others suggested hiring an information specialist. What ensued in the dialogue was an impassioned argument over the term broker. The non-member was vehement in his feelings that he would never hire an information broker, because "brokers obtain and sell illegal information."

The etymology of the term broker can be traced back several hundred years. In general, a broker buys and sells property. For example, dealers in second-hand goods are called pawnbrokers. Go-betweens in love affairs are marriage brokers. Middlemen in investment bargains are referred to as stockbrokers. The independent information professional, on the other hand, performs a service for a client, expecting payment for work even if there is no delivery of goods, much like a physician who expects to be paid even if the patient remains undiagnosed or dies. Furthermore, independents do not accumulate information and resell it indiscriminately. We operate on a principle of "one search, one client," similar to accountants who do not sell pre-packaged tax returns to multiple clients. Actually, one might view database producers and vendors as true information brokers, buying information in bulk from one or many companies and repackaging and selling information to other organizations.

Our industry continues to struggle with finding a better label to define and present ourselves as legitimate professionals. In this regard, we will continue to protest news stories that misapply information broker to private investigators and those who obtain information illegally for purposes of surveillance, piracy and personal background checks.

This discussion of image and how our industry is defined is clearly related to the issue of intellectual property rights. The impact of technology on publishing and on the delivery of information raises additional concerns about how independents are viewed in the day-to-day management of their businesses.

With the significant growth of client-server networks, every personal computer to be converted into a powerful desktop information factory, as evidenced by the emergence of global computer networks. It is difficult to determine when it is legal to copy printed publications for a client, even with mechanisms such as the Copyright Clearance Center in place. Permissions to reproduce electronic articles are lacking or, when available, ambiguous. Copyright protection for current computer technology is governed by antiquated laws protecting intellectual property.

How does the independent protect the rights of database producers, publishers and authors, while at the same time fulfilling the information and research needs of our clients? As an information provider, working on behalf of my clients, I worry about the misconception of many publishers and database producers that we are resellers of information. There is no difference between information brokers and special librarians who work for corporations (in both cases, research work may lead to products that are sold for a profit or used in commerce). And, contrary to what many publishers and database producers might think, independents generally do not mark up online costs, but pass them directly to our clients. In fact, some database vendors prohibit mark-ups in their contractual agreements.

Some database producers would want independents and librarians to be accountable for any copying done by their clients after search results are delivered. It appears that our putting the publisher's copyright statement on search results and cautioning our clients not to photocopy any further than for personal/fair use may not always be effective.

I am concerned about downloading full-text documents, making one copy for backup or archival purposes, sending the original to a client, and speculating if additional copies will be made. There are publishers who would ask us to have our clients sign liability statements in the use of the information they receive, or to hold us, as the intermediaries, directly liable for our clients' use. What does this do to our vows of confidentiality? (See AIIP's Code of Ethical Business Practice on page 13.) And from a practical point of view, how can we police our clients? Does the corporate librarian in a Fortune 500 company really monitor the use of library materials and the results of online searches?

If I add information to downloaded, copyrighted text, I might be held accountable for copyright infringement. Can we combine information from several sources into one report without being in violation? For example, what if we do a competitor study, take the executive biographies from one database, the corporate history from a second, articles from a third and financials from a fourth? Some databases prohibit us from taking portions of their documents to write a comprehensive report.

When providing a full-text article, do we always check the online vendors' terms and conditions, look up the journal to see if it is registered with the Copyright Clearance Center and examine the copyright page of the journal for specific photocopying conditions? A journal registered with the Copyright Clearance Center does not necessarily mean that we can photocopy or download articles from it.

I have other questions and concerns. If I download an online or CD-ROM full-text article, can I use my back-up/archival copy to make additional copies for other clients, but pay royalty fees to the Copyright Clearance Center or the publisher directly? I know we can do this with our hardcopy journal subscriptions. Can we enjoy the same practice with electronic versions? Is there a difference between copying from an electronic text versus a hard-copy text?

The fairly rapid movement of the Clinton-Gore administration to make government information more available scares me - especially if the information goes out on the Internet or NREN - and we, as independent companies and sole proprietors, must pay a high fee for a node to access this information. Will private companies mount more and more government databases, most of which now provide cheap or free public, copyright-free information, and will the private companies put their copyrights on these databases and raise prices by 100% or more? How will government ensure that downloaded information is not re-uploaded with information added or deleted by the user? Will we, as intermediaries, be held accountable for the accuracy of this information?

And what about authors who sign over their intellectual property rights to publishers and find that they are in copyright violation when making copies for their colleagues because corporate libraries cannot afford subscriptions to the very journals in which their employees publish? Some have suggested that authors directly place their articles on the Internet, bypassing the publishing and online industry all together. I am disturbed about lack of peer review and indexing control, as well as my own access and how I will ultimately compensate the producer of the information.

I do not perceive all of this as unsolvable. Various definitive actions need to take place. First, the Copyright Act must be revised, or interpreted, to clearly define intellectual property rights for current and future technologies. Second, terms and conditions for intermediaries should be standard across all online and CD-ROM vendors. Third, copying from backup electronic copies should be clarified (Dialog is one vendor which has taken a step in this direction, introducing its Electronic Redistribution and Archiving Service early in 1994). Fourth, we must be acknowledged as intermediaries for our clients and not be held accountable for copyright infringement by our users, other than to warn about any restrictions if they are thinking about making multiple copies beyond the fair use doctrine or creating databases from downloaded results. To this end, I am pleased that the AIIP Board of Directors recently approved an AIIP Statement of Policy Concerning Intellectual Property Rights. (See accompanying box.)

Stephanie C. Ardito has worked in the library and information industry since 1974, including 10 years at the Institute for Scientific Information. In 1990, she founded Ardito Information & Research, Inc., based in Wilmington, Delaware. She is the current president of the Association of Independent Information Professionals.

AIIP Statement of Policy Concerning Intellectual Property Rights

  1. AIIP members are independent small business owners who provide fee-based information services to multiple clients. AIIP members act as agents of their clients when they locate and retrieve information, or act as intermediaries who provide information services on behalf of their clients.
  2. AIIP members are required to adhere to a Code of Ethical Business Practice in which they bear the following responsibilities relating to intellectual property rights:
  3. AIIP members charge their clients for professional services and for reimbursement of out-of-pocket expenses, which may include costs involved in retrieving and delivering copyrighted materials.
  4. AIIP members are committed to the practice and principle of one time use of copyrighted material, sometimes called "one search, one use."
  5. In situations in which AIIP members are aware that they are providing copyrighted materials to clients, AIIP members recognize their responsibility to inform clients about potentially applicable provisions of international copyright laws regarding the reproduction and photocopying of protected materials.
  6. In order to ensure that publishers' rights are protected, AIIP strongly advises members to include a statement about copyright in client contracts and agreements.
  7. AIIP strongly suggests that informational and advisory copyright statements provided to clients include the following essential elements:
    1. A statement informing clients that the materials they are receiving may be copyrighted, if in fact they are.
    2. A statement informing clients that questions regarding copyright should be addressed to their legal advisers or to the publishers holding the copyright.