Re: Negotiating

[David Goodman <dgoodman@phoenix.Princeton.EDU>]

I, for one, would much prefer it if the legal doctrine were that fair use
supersedes contract provisions involving intellectual property, on grounds
of public policy. However, that does not appear to be the case, and the
present legal and political climate does not seem to be changing in that
direction.

Therefore, Tom, you are right that we should use our negotiating power
more, rather than just surrender. Many of the the license terms we now see
routinely are much better than those we saw a few years ago. This is
partly due to the efforts of this list and its moderator in raising
awareness and providing models, but also to our individual insistence on
them. An excellent example is ILL; not every publisher permits it even
now, but at first none of them did. They changed because we kept
insisting. Change is even easier for matters that are just standardized
terms about very improbable contingencies.

I suggest changing every contract that has undesirable terms to read the
way one thinks it should, and send it back to the publisher. The publisher
will usually reply that most of the changes aren't acceptable. Sign
anyway, unless it's really intolerable, but the point has been made.

For example, I suggest adding the clause in appropriate cases, that: "The
publisher warrants that in case some other party owns the copyright, the
publisher possesses the irrevocable right to the permanent distribution of
the material purchased."

I also suggest always adding:

"The publisher warrants that it will not remove material from the site
except if legally required by a court of competent jurisdiction."

It will probably be a while until provisions such as this become standard,
but they will never become standard if we don't ask.  I have seen similar
terms on some contracts, and I commend the publishers that are attempting
to meet the need these terms express--even if their current wording is
less strong than I think desirable. (As is probably obvious, I am not a
lawyer, and suggestions for more effective language are welcome.)

My personal view only, as always,

David Goodman
Research Librarian and
Biological Sciences Bibliographer
Princeton University Library
dgoodman@princeton.edu            609-258-7785

On Tue, 28 May 2002, Tom Williams wrote:

> Rick, what you describe has been tried (sometimes successfully) by
> numerous intellectual property "owners."  The key is to carefully read the
> license guidelines.  If this component is there DO NOT sign.  Similarly,
> as I found out the hard way, if you sign off on a license/contract that in
> any way restricts "Fair Use," then that contract supecedes the fair use
> guidelines and you are stuck with whatever you signed off on.  A point
> that I keep belaboring and which our associations seems unwilling to face
> as squarely as we might wish, is that we (all libraries) need to develop
> guidelines so that individual libraries will have a template to use when
> negotiating.  Right now the publishers and others are running rampant with
> whatever "rules" they can get away with.  MLA, ALA, SLA, and the rest need
> to work together to establish guidelines that are fair to both libraries
> and publishers.  Libraries with substantial collections budgets have a
> certain amount of clout with the publishers and others.  That "clout" will
> be exponentially increased if we establish guidelines that most libraries
> choose to adhere to.  If the vendors do not agree to our guidelines to our
> satisfaction, then NO DEAL.  Policies such as pushing off all liability
> for improper use onto the libraries, restricting fair use, etc., should be
> deal breakers.  Individually, we have had success in dealing with some
> publishers and vendors by not signing off on licenses which we find too
> restrictive or in any other way unacceptable.  However, this will not work
> unless you are committed to cancelling or not ordering the product if an
> agreement is not reached.  I don't recall one deal that was cancelled due
> to not working through the issues.  They tend to want to make the sale and
> are usually willing to negotiate.  Individual libraries may have some
> clout, but collectively we would be a powerhouse.
>
> --
> Thomas L. Williams, AHIP
> Director, Biomedical Libraries and
>  Media Production Services
> University of South Alabama
> College of Medicine
> Mobile, Al 36688-0002
> tel. (251)460-6885
> fax. (251)460-7638
> twilliam@bbl.usouthal.edu