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Re: Not negotiable?
At Texas we have been in active negotiation with several faculty about various corpora products. I showed them these products (which they liked), and explained that we would not be able to purchase it because of licensing issues -- and that other tax supported insitutions in our state would have the same problems. They were, of course mystified at why such an impasse would exist between publishers and state contracting laws & rules. Rick Anderson's suggestion of no license for financially strapped publishers is an interesting one. We currently license more than a hundred web databases and I'm not sure how many e-journals including some without a license. The reality is that there is no way that we as a library could treat each of these vendors differently. We place all products through the same general authorization/copyright/security precautions whether we have a license or not. In our case, at least, Michigan would get the same real (though perhaps not legal) protections whether or not they had a license, but because of their license and non-negotiation stance we wouldn't be able to purchase their product. So by having both a restrictive license and a non-negotiation policy, they would essentially be withdrawing themselves from the market in our state. --Dennis Dillon Univ of Texas at Austin __________ >Michelle raises an important point in her note. It's true that there can >be serious fiscal barriers to the negotiation of individual licenses, >especially for low-priced items. As one publisher put it to me, "If I >have to negotiate and sign a contract for every sale of my $50 product, >I'll go out of business." Librarians need to recognize and be sensitive >to that. > >However, the problem that libraries face is that a license agreement is, >in fact, a binding contract. From our end, it doesn't really matter >whether the product costs $50 or $50,000 -- if its purchase binds us to >terms that are unacceptable or, in some case, illegal, we're stuck. For >example: the license agreement for Michigan's "Middle English Compendium" >(to which Michelle thoughtfully provided a link) includes a clause which >causes the licensee to "indemnify and hold the UMP harmless from any >liability or claim of any person arising from" use of the product. Not >only would any library be foolish to agree to this condition (why should >the library agree to stand between the publisher and, say, some third >party claiming ownership or damage?), the simple fact is that many >libraries are prohibited by law from doing so. At UNC Greensboro, a state >institution, our agreement to *any* indemnification would, technically, be >binding on the State of North Carolina, and we simply do not have the >legal authority to bind the State. If the University of Michigan Press >were to say that we can only purchase access to MEC under the current >terms of the license, we would simply have to decline to purchase. It's >hard to see how this would result in cost savings to the Press. > >So do we have a stalemate, in which publishers can't afford to negotiate >every sale and libraries can't afford not to? > >Not necessarily. Others with far more experience in this area can >probably make better suggestions, but here are a couple of my own, to be >taken for what they're worth (and for which I will accept no legal >responsibility ;-) ): > >1. If you are a publisher who sells regularly to individuals, >corporations and libraries, create one version of your license for each >market. Know that libraries, for example, will generally balk at >indemnification clauses, jurisdictional specifications, language that >allows you to terminate access without notice and for "any breach", etc. >These may or may not be problems for your other types of customers. You >don't necessarily have to negotiate with *every* library, but you are >probably going to have to face and deal with the needs of libraries *as a >market* if you want to keep selling to them. > >2. Don't require a license agreement. (Ouch! Hey! Quit throwing >stuff!) Think about this, though: A contract is a contract. In what >other business context would it be considered normal for one party to try >to impose non-negotiable terms on the other party? If it's not worth your >while to negotiate a contract every time you sell the product, maybe that >implies that the risk you'd be taking in providing it without a contract >is minimal. Of course, sometimes third-party IPs are involved and there >can be many other complications. But that doesn't mean you shouldn't ask >yourself the question. This was exactly what I ended up suggesting to the >publisher I mentioned above -- he's got a $50 product that he owns >outright. If he can't afford to negotiate, maybe he could afford to throw >out the agreement and just trust us to use his product honestly. Barring >some kind of massive abuse, he's not really taking much risk. > >Does this make sense to others? There are probably some big fat holes in >my second suggestion, and I'd welcome having them pointed out, as well as >any others... > >---------------------- >Rick Anderson >Head Acquisitions Librarian >Jackson Library >UNC Greensboro >1000 Spring Garden St. >Greensboro, NC 27402-6175 >PH (336) 334-5281 >FX (336) 334-5399 >rick_anderson@uncg.edu >http://www.uncg.edu/~r_anders > >"Conservatism teaches us to worship >our property. Liberalism teaches us to >worship our rights. Both teach us to >worship ourselves." > -- Stephen L. Carter > >On Thu, 14 May 1998 00:08:54 -0400 (EDT) michelle miller-adams ><mbmiller@umich.edu> wrote: > >> I'd like to comment on the question raised last month by Rick Anderson >> regarding why a publisher might decide to make its licenses >> non-negotiable. We at the University of Michigan Press have, in fact, >> decided that the two site licenses we have written so far should not be >> negotiable. The first is for the Dictionary of Old English Corpus and the >> second is for the Middle English Compendium. These licenses can be viewed >> at <http://www.press.umich.edu/sitelic/index.html>. (For descriptions of >> the products themselves, go to >> <http://www.press.umich.edu/digpub/digpub.html>.) >> >> We have priced subscriptions to these bodies of work as low as possible, >> seeking to cover just the basic costs of production and our overhead. We >> have not included enough of a margin in the price to allow for time spent >> in conversations and negotiations with individual libraries or consortia >> interested in revising terms of the license. In these cases, there is a >> clear link between offering as low a price as possible and limiting the >> amount of staff time spent in administering licenses. >> >> While we will not be negotiating provisions of our licenses with >> individual libraries, we welcome feedback from the library community about >> our licenses in general. We have already accommodated concerns raised by >> some members of the lib-license list about defining a library's authorized >> users explicitly to include walk-in traffic, and mentioning the role of >> fair use. If there are other concerns that come to mind upon reading these >> licenses, please let me know (you can communicate with me directly at >> mbmiller@umich.edu). >> >> Michelle Miller-Adams >> Manager, Digital Publishing >> The University of Michigan Press
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