Summary of Responses to Licensing Negotiation Query

["Phillips, Kara" <Phillips@seattleu.edu>]

This message is cross posted to several list servs.  I apologize 
for the duplication.  A couple of weeks ago, in preparation for 
the WESTPAC conference (which was fabulous!) I posted the 
question below on several list servs:

"I will be participating on a panel about licensing at the 
upcoming Westpac conference <HTTP://westpac.law.unlv.edu/> in 
sunny Las Vegas. It would be helpful if those on the list could 
provide their perspectives on the following:

1. Which license provisions are the easiest to negotiate and why?

2. Which license provisions are the most difficult to negotiate 
and why?"

I want to thank everyone who responded.  The responses were very 
helpful in preparing for the presentation.  I have copied the 
summary of responses and bibliography into the text of this 
message below. Again, thanks to everyone for responding!

Kara Phillips phillips@seattleu.edu

*********************************************

Westpac Conference - Program B

Games We Don't Want to Play: Negotiating Electronic Resource Contracts

In September 2006, we polled several listservs to determine which 
licensing provisions and/or requests are the easiest to negotiate 
and which are the most difficult.  What follows is a summary of 
responses:

Terms/Requests
Negotiability Rating
Comments
Access
moderate

"I have had trouble, also, with negotiating the type of access I 
need. I am not going to manage and pass out individual 
passwords...I want a single, simultaneous-user embedded login. 
The users should come to my centralized server and simply click a 
link to obtain access.  Any password access is handled behind the 
scenes.  Along with ease of use for my users, I don't see why 
vendors can't see the security factor of the access." Court 
library

"IP address recognition is pretty standard so there are fewer 
licenses that talk about simultaneous users or user limits." 
Academic library

Additional content: easy

"For vendors that have a lot of content and sell access to 
various portions of it, additional content can be part of the 
bargaining process.  For instance, a proposal of a certain amount 
of content at a certain price doesn't seem like a good value, but 
additional content at the same price might be." Firm library

Authorized users: difficult

"Many of the vendors want real tight control on users...They want you to
identify all users, or potential users, and only provide access to those
who will use it...I host most of our access on a centralized server.  I
can control which user groups have access to the application...but often
I cannot tell you exactly which specific users will use it.  I can only
provide a rough estimate of number of users."  Court library

Authorized users - Walk-in:  moderate

"In a library that is open to the public, we have no control over 
walk-in-traffic.  We always try to include on-site walk-up users 
as part of the authorized group, even when we know that it may be 
only a rare occurrence.  We simply have no way to monitor it, and 
we don't want to be responsible for a violation.  Most of the 
time when we explain that, it is not a problem, but occasionally 
it is." Academic library

"Authorized users, including walk-ins, is normally fairly easy to 
negotiate; the wording in licenses these days is often very close 
to what we want." Academic library

Cancellation:  easy

"I have also had good luck with several of the larger vendors in 
getting the clause about cancellation of service modified.  We 
usually are able to have added language that allows us to cancel 
the agreement, without penalty, should our financial situation 
change suddenly.  I have several multi-year contracts.  I cannot 
control my budget year to year (that is done by the Legislature). 
A few times in the past our budget has been reduced by 50% or 
more from one year to the next.  I need the ability to get out of 
the agreement when I truly have no money to pay and have no 
options for obtaining the money." Court library

Competition: easy

"It may seem slimy, but when there is more than one vendor for a 
specific service...I always let the reps know that I've been 
talking to the other guy and I have no shame about asking for an 
offer from one rep and then going back to the other rep and 
asking if they can beat that. One can go back and forth several 
times and get a pretty good deal before you hit the bottom of 
what they are willing to give." Firm library

Confidentiality clauses: moderate

"I have generally found the change in the non-disclosure clause 
to be the easiest.  We are a public entity and I make it clear 
that we are subject to FOIA regardless of what the clause says. 
Usually I can get the language changed to read that we will not 
disclose unless required to under provisions of the law." Court 
library

"The biggest sticking point, which we won, was the removal of the 
confidentiality clause.  I couldn't figure out why [the 
publisher] was so adamant on that - we were paying their standard 
rate, no special prices...It is not like we "won" a lot from [the 
publisher] with our license that would weaken them for future 
agreements with others. Confidentiality is one clause that is a 
deal breaker for us."  Academic library

Course Packs/Electronic Reserves:  moderate

"Use of course packs and electronic reserves is a fairly big 
thing...we try to include these in the licenses we sign...about 
one fourth of the time, these provisions appear in an acceptable 
manner in a license; another one fourth of the time, they are 
dealt with but not completely to our satisfaction; the rest of 
the time, they are absent.  When we try to get these uses added, 
about half the publishers are OK once we have described what we 
are referring to (non-commercial, term or course-length use) 
while the rest are not." Academic library

Damages: difficult

"Some of the boilerplate non-IP things, such as damages" are more 
difficult. Academic library

ILL:  moderate

"The other item we got was an ILL clause for secure electronic 
transmitting." Academic library

"The second [difficult] area is the use of the resource for 
interlibrary loan purposes-some vendors seem to assume that the 
ease of electronic transmission of files means that we will act 
differently than we do with print resources.  It is hard to 
assure that we have the same safeguards in place." Academic 
library

"We have had issues with various vendors wanting to be strict in 
their template language...more readily with regard to ILL." 
Consortium

Indemnification:  difficult

"Mutual indemnification can also be a difficult thing to arrange. 
Some publishers provide this out-front in their licenses but 
others do not." Academic library

"Changing the indemnification clauses to make it less severe for 
us" is difficult. Academic library

"Indemnity clauses have proven to be the most difficult to 
negotiate. This is usually because the vendor is unwilling to 
accept the same risk as the purchaser.  We have had vendors 
refuse to be willing to indemnify us if something goes wrong due 
to their gross negligence or willful misconduct.  It's as if they 
are telling us that, though they can't guarantee that nothing 
like this will happen, but if it does, they're washing their 
hands of any responsibility.  It makes my lawyers crazy." 
Corporate library

Jurisdiction:  moderate

"Jurisdiction is also a hit-and-miss proposition.  Ideally, we 
would like a Canadian jurisdiction and Canadian courts.  Now and 
then, we get this, but most of the time, we have to go with other 
solutions. Sometimes going silent on jurisdiction will work, 
sometimes having a line that indicates jurisdiction based on who 
is bringing the complaint will work." Academic library

"Choice of Law (state schools often cannot bow to another state's 
law - sometimes they delete the choice of law statement entirely 
(a less desirable option)." Academic library

"One area that we rarely have trouble negotiating is in changing 
the governing law provision.  We always propose a neutral state, 
such as New York or Delaware, and that is rarely an issue with 
our vendors." Corporate library

"We appear to have passed the hurdle about venue with enough 
vendors understanding no state is going to relinquish their 
State's rights to another site (state or national government)." 
Consortium

Multi-site licenses:  difficult

"Some vendors allot a few IP spaces, and if you exceed them, they 
give you a multi-site license, which multiplies your costs." 
Academic library

Newer company:  easy

"It is much easier to work your concerns into an agreement with a 
newer company or one who is new with electronic publishing." 
County library

Notification:  easy

"Changing the number of days for notification is usually easy to 
do as well (being in Canada, it is wise for us to add a few days, 
just to be on the safe side); crossing the border can add a few 
extra days for print mail." Academic library

Patriot Act: difficult

"Licenses emanating from American-based publishers or from 
non-US-based publishers that are subsidiaries of American 
companies increasingly feature clauses or wording that is 
influenced by the USA Patriot Act and/or rulings of the Office of 
Foreign Asset Controls (OFAC)...the wording appears more quietly 
in other licenses in the force majeure sections ("governmental 
restrictions").  As a library in another country, these sorts of 
clauses are not good for us (they can potentially force us to cut 
off service to students in certain parts of the world) so we 
always try to have the more prominent of them removed; we have 
yet to be successful in this." Academic library

Perpetual access:  difficult

"An archival provision is also a troublesome thing to try to 
arrange. Again, some publishers provide this initially but others 
do not.  For those that do not, it seems that no explanation will 
suffice (e.g. we don't want to end up with nothing at the end of 
the day, having paid good money for a product)...they are almost 
always unwilling to include archival access in their license." 
Academic library

Pricing based on number of users: difficult

"Vendors want to base price on the number of potential users. 
We have over 200 judges, referees, and magistrates.  Of those, I 
know that about 1/3 or 1/2 will actually use the application at 
one point or another. To this, we add research clerks, staff 
attorneys, librarians and members of the clerk's office.  I 
cannot and will not purchase based on a potential of 600+ users. 
I want to purchase based on the maximum number of users we 
anticipate may actually use the item at any given time (maybe 5 
or 10 simultaneous) or...for the maximum number of users my 
server can simultaneously accommodate - 120.  This can often be a 
sticking point.  I understand their need to maximize their money 
earning potential but they have to realize that we are a 
government agency and cannot charge the clients more to meet 
their price." Court library

Privacy: difficult

"Privacy. Vendors seem to be frightened by a misperception. 
Perhaps...they are hiring newly-minted JDs who have had personal 
experience with misallocation or other misuse of resources.  The 
corporate sector does not seem to understand the academic 
library; it certainly is a different type of entity to be sure! 
Many non-profit corporations are more readily amenable to a 
meeting of the minds on most points than for-profit 
corporations." Consortium

Remote access: difficult

"One of the most difficult is whether we can make a source 
available through the university's proxy server for off campus 
use." Academic library

"Some vendors want to charge extra for remote access through a 
proxy server and many new reps do not understand the mechanics." 
Academic library

Certifications required for state contracts:  easy

"These are anti-bribery, drug-free workplace, and other 
guarantees...they're required on ALL contracts with the State 
without exception, so I tell Vendors I don't have any discretion 
to modify them except to insert "to the best of Licensor's 
knowledge, Licensor certifies that...." Academic library

Technical support: easy

"For basic technical support...do you get it with the contract or 
do you pay for the service (I would balk at agreeing to pay for 
support as needed with most suppliers making it part of the 
package)." Firm library

Third party use restrictions: moderate

"We experience one other issue when we buy catalog records and 
have to sign a license agreement.  There is always a "no 
third-party use" clause or something like that, and we always 
have to explain that we are part of a consortium of 8 libraries 
so our catalog records are part of a consortial OPAC.  It is 
usually not a problem when we explain the situation, but it is 
like the vendors have not thought about that possibility even 
though it must be fairly common." Academic library

Training: easy

"Most vendors will offer unlimited training at no additional 
charge with a good flat-fee contract.  One should be prepared to 
ask about such perks." Firm library

Usage tracking: easy

"I do like individual logins so that usage can be tracked and 
hopefully billed to clients...some services just have to be 
pay-as-you-go- good tracking is very, very necessary in that 
case." Firm library

****

Westpac Conference - Program B:

Games We Don't Want to Play: Negotiating Electronic Resources Contracts
Online Resources on Electronic Licensing (by topic)

BIBLIOGRAPHIES

Bibliography of Licensing Sources by LIBLICENSE
   <http://www.library.yale.edu/~llicense/bibliogr.shtml> 
Annotated bibliography of articles, books, online resources.

CONSORTIA

Collaborative Acquisition of Electronic Resources by Tracy 
Thompson in the CRIV Sheet (May 2005) pp. 4-6 
<http://www.aallnet.org/products/pub_sp0505/pub_sp0505_CRIV.pdf> 
Discusses NELLCO's process in licensing electronic legal 
resources for consortial members.

Libraries on the Web USA Consortia 
<http://lists.webjunction.org/libweb/usa-consortia> Lists library 
consortia in the United States with links to their Web sites.

Participating Consortia of the International Coalition of Library 
Consortia 
<http://www.library.yale.edu/consortia/icolcmembers.html> Lists 
international consortia with descriptions and contact 
information.

COURSES

Copyrightlaw.com, seminars and workshops taught by Lesley Ellen 
Harris <http://copyrightlaws.com/index2.html> Courses regularly 
offered cover licensing and copyright.  Some are available 
online.

GENERAL OVERVIEW:

Licensing Electronic Resources: Strategic and Practical 
Considerations for Signing Electronic Information Delivery 
Agreements by Patricia Brennan, Karen Hersey, and Georgia Harper 
<http://www.arl.org/scomm/licensing/licbooklet.html>
Excellent overview of what issues to consider and questions to ask when
licensing electronic products.  The table on copyright issues is a great
checklist.

MODEL/EXAMPLE LICENSES

Are Model Licenses the Answer? by Lesley Ellen Harris 
<http://www.copyrightlaws.com/index2.html> Analyzes the pros and 
cons of using a model license and provides suggestions on how to 
use them appropriately.

LIBLICENSE Standard Licensing Agreement (2001) by the Council on 
Library and Information Resources, the Digital Library Federation 
and Yale University Library 
<http://www.library.yale.edu/~llicense/modlic.shtml>
Choose from the short form license agreement or the longer version.

Licenses Provided by Publishers by LIBLICENSE

<http://www.library.yale.edu/~llicense/publishers.shtml> Selected 
publishers provide links to their actual license agreements. 
Legal publishers need to contribute to the list!

Model Standard Licenses for Use by Publishers, Librarians and 
Subscription Agents for Electronic Resources (2000) developed by 
publishing consultant John Cox <http://www.licensingmodels.com/> 
Choose from licenses for single academic institutions, academic 
consortia, public libraries, and corporate/special libraries.

NELLCO License (2004) <http://www.nellco.org/nellcolicense.pdf> 
Comprehensive license covering all the necessary provisions.

NEGOTIATION How to Be a Better Negotiator by Lesley Ellen Harris 
<http://www.copyrightlaws.com/index2.html> What licensees should 
keep in mind during the negotiation process. Provides a handy 
checklist at the end of the article.

Licensing Perspectives: The Library View by Ann Okerson
<http://www.library.yale.edu/~okerson/cni-license.html> 
Good overview of how to license and which terms to license.

PRINCIPLES

Licensing Principles (2001) by International Federation of 
Library Associations and Institutions (IFLA) 
<http://www.ifla.org/V/ebpb/copy.htm>

Principles for Licensing Electronic Resources by AALL, 
<http://www.aallnet.org/committee/reports/LicensingPrinciplesElecResourc 
es.pdf> Drafted to assist librarians in licensing electronic 
products by providing detailed principles and to educate legal 
vendors of electronic licensing issues.

Principles for Acquiring and Licensing Information in Digital 
Formats (2006) by University of California Libraries 
<http://libraries.universityofcalifornia.edu/cdc/principlesforacquiring. 
html> Discusses open access, publishing models, copyright, 
licensing, preservation, and statistics.  Also provides a link to 
a useful checklist for licensing provisions: 
<http://www.cdlib.org/vendors/checklist.html>.

Statement of Current, Perspective and Preferred Practices for 
Selection and Purchase of Electronic Information (2004) 
International Coalition of Library Consortia 
<http://www.library.yale.edu/consortia/2004currentpractices.htm> 
Lists several preferred practices for purchasing electronic 
information including permanent access, development of usage 
data, elimination of no-print cancellation clauses and 
nondisclosure agreements.

TERMS

Definitions of Words and Phrases Commonly Found in Licensing 
Agreements <http://www.library.yale.edu/~llicense/definiti.shtml> 
Provides definitions to difficult terms like "Public Access 
Workstation," "Terminal" and "Remote Access."  A great resource 
when trying to draft specific clauses or definitions in a license 
agreement.

Getting What You Bargained For - Essential Terms Every Librarian 
Should Include in a Licensing Agreement by Lesley Ellen Harris 
<http://www.copyrightlaws.com/index2.html> Covers the essential 
clauses in a license agreement and provides commentary on typical 
issues and questions needing clarification.

Glossary of License Terms: De-mystifying the Licensing of 
Electronic Resources by Trisha L. Davis 
<http://www.arl.org/scomm/licensing/glossary.html> Defines common 
jargon found in license agreements.

Licensing Terms by LIBLICENSE
<http://www.library.yale.edu/~llicense/table.shtml> 
Covers common clauses and provides examples of good and bad terminology.

Undesirable/Unacceptable Terms by Northwestern University Library 
<http://staffweb.library.northwestern.edu/cm/erlAppendixA.html> 
Review these terms carefully so that you can spot them in a 
license agreement.

PRINT ARTICLES ON ELECTRONIC LICENSING

Tony Horava, Access Policies and Licensing Issues in Research Libraries,
24 Collection Building 9 (2005).

Ellen Finnie Duranceau, After the License is Signed: Collaboration to
Resolve License Breaches, 48 Serials Librarian 339 (2005).

Lesley Ellen Harris, Digital Licensing Questions, Information Outlook,
June 2005, at 62.

Jill Emery, Is Our Best Good Enough?  Educating End-Users about
Licensing Terms, 42 no.3/4 Journal of Library Administration 27 (2005).

Tracy Thompson, Library Consortia in the 21st Century: Beyond the Buying
Club 15 Trends in Law Library Management and Technology 1 (2004).

Jeffrey C. Carrico, Licensed to ILL: A Beginning Guide to Negotiating
E-Resources Licenses to Permit Resource Sharing, 40 no. 1/2 Journal of
Library Administration 41 (2004).

Anna May Wyatt, Licenses, the Law and Libraries, 42 no. 3/4 Journal of
Library Administration 163 (2005).

Laura Kane McElfresh, Licensing of E-Resources: Easing the Flow,
Technicalities, May/June 2006, at 1.

George Pike, Licenses Under Wrap, Information Today, October 2005, at
17.

Duncan E. Alford, Negotiating and Analyzing Electronic License
Agreements, 94 Law Library Journal 621 (2002).

Jim Stemper and Susan Barribeau, Perpetual Access to Electronic
Journals: A Survey of One Academic Research Library's Licenses, Library
Resources & Technical Services, April 2006, at 91.

Stephen Bosch, Using Model Licenses, 42. no. 3/4 Journal of Library
Administration 65 (2005) <javascript:void%200;> .

BOOKS ON ELECTRONIC LICENSING

Stephen Bosch, Patricia Promis & Chris Sugnet, Guide to Licensing and
Acquiring Electronic Information, Scarecrow Press (2005).

Arlene Bielefield and Lawrence Cheeseman, Interpreting and 
Negotiating Licensing Agreements: A Guidebook for the Library, 
Research and Teaching Professions, Neal-Schuman Publishers 
(1999).

Licensing and Copyright Management: Best Practices of Academic, 
Special and Research Libraries, Primary Research Group (2004).

Lesley Ellen Harris, Licensing Digital Content: A Practical Guide 
for Librarians, ALA (2002).

Karen Rupp-Serrano, Licensing in Libraries: Practical and Ethical 
Aspects, Haworth Information Press (2005).

Audrey Fenner, Managing Digital Resources in Libraries, Haworth 
Information Press (2004).

Fiona Durrant, Negotiating Licenses for Digital Resources, Facet 
(2006).

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