Tag Archives: licensing_agreements

The Rock and the Hard Place (Part 2): Opening Up License Negotiation

The following is the second in a series of posts on the subscription-based model and open access alternatives, and how each get stuck from their respective ends of the scholarly information supply chain.  In addition to the usual disclaimer regarding my own opinions expressed here, these should also not be interpreted as a substitute for legal advice.

In my last post I outlined one side of scholarly communication — the subscription renewal process – in underrepresented detail, revealing places where it is stuck in arduous workflow, inefficient systems, and complex, problematic licenses. In addition to pointing out the subscription model’s own struggles, I acknowledge its perpetuation works directly against investment in open access alternatives. Seeing the shared predicament from each respective end, I wondered how these two workflows come together in practice. Beyond our company in misery, this post will explore where collaborations, specifically in the realm of licensing, have made progress toward alternatives to traditional publishing and subscription-based acquisition.

Licensing
Contract negotiation is an activity associated with the subscription model that most often occurs when placing new orders or at renewal. In many cases this responsibility is performed by collection management or acquisitions, usually with support of the institution’s general counsel. Scholarly communication staff also interpret contracts as they assist authors in negotiating publishing terms and retention of authors’ copyright. The scholarly communication office might also be involved in contract negotiation if they are a publishing entity themselves. A third player, interlibrary loan, also plays a role in licensing terms, interpreting copyright and fair use as it relates to day-to-day borrowing and lending, and copyright fee payment associated with these activities.

For other obvious reasons, these areas of the library are key stakeholders in the subscription renewal process. If we cancel, what will the faculty reaction be? How will the subscription savings through cancellation effect the cost of ILL? If we renew, what does this say about our efforts in promoting open access? In addition to this, the skillset these faculty share in negotiation and the interpretation of copyright in particular reveals a unique collaborative opportunity for subscription and open access workflows.

Bringing these shared skillsets together in the licensing process allows for a more comprehensive awareness of where contracts can restrict rights granted by copyright law. More specifically these perspectives can quickly identify key terms that can best mitigate that risk and influence other favorable objectives. The LIBLICENSE project is an excellent starting point for understanding general license terms and those specific to the needs of libraries. I highlight examples of some commonly sought terms below for which the collaborative contexts I’ve mentioned have been most helpful in addressing. Relevant pages and discussion threads from LIBLICENSE and other resources are linked within.

In terms of content and acquisition:
• Post-cancellation access (see perpetual license)
• Emergency cancellation clause (see force majeure and early termination)
• Title swap and cancellation allowance
• Content caps on changed or lost content
• Pricing caps – the larger or longer the deal, the lower the cap

In terms of ILL and copyright:
• Allowing ILL with more liberal interpretation for electronic access (see 1997 ILL straw poll)
• Assert/Do not remain silent on copyright (see section 3.3 model license “ No Diminution of Rights” and Fair Use assumptions discussion thread)

In terms of open access:
• Assert author rights (see 3.4 model license “Authors’ Own Works” and also COAR’s 2013 report: OA Clauses in Publishers Licenses )
• Eliminate or ameliorate confidentiality and non-disclosure clauses (see also ARL recommendation)
• Allow for text and data mining (see Request: Text and Data Mining Licenses…Language thread)

Negotiation
Though many of these terms are generally accepted among the library profession and even have the backing of national and international organizations, publishing and other industries have their own generally accepted clauses and the backing of their organizations. This is why it can be difficult, unrealistic even, for the single acquisitions staff responsible for negotiation to push for all these on her own.  A major subscription contract renewal is an important opportunity for many to speak with a unified voice, not just on behalf of buyers and content, but on behalf of authors and of a wider audience of users. In addition to bolstering well known terms and issues, these multiple perspectives are key to introducing new ideas into a traditional negotiation.

Sometimes new ideas (and even traditional ones) will not result in accepted contract terms because they are dealt with entirely separately from the renewal process, or because they do not otherwise match the other party’s entrenched business practices. This can be advantageous from a negotiating standpoint, as losing out on some issues can favorably influence the advancement of others. The fact that some issues are perceived as entirely separate from the renewal process can also be advantageous. Author rights, for example, are often handled through individual author contracts or separate institutional open access policy agreements. While this can sometimes prevent their inclusion subscription agreements, by recognizing the separation itself the negotiation lends a stage to raise important issues more boldly without directly jeopardizing the terms of renewal.

New ideas I’d like to see in renewal negotiation discussions involve taking what is often the licensee’s obligation and making it a mutual or licensor obligation. One example is caps on changed and added content. Publishers often allow a clause that addresses when a percentage of content lost by a publisher can trigger breach or renegotiation. But aside from title cancellation and swap clauses – which are rare and require a significant amount of time and effort by the library to invoke — there is nothing to prevent a publisher from acquiring and adding content to a package for which the libraries are required to take on in their renewal spend. Another has to do with advance renewal or offer deadlines. As outlined in my previous post, publishers often require advance notice of cancellation, but there is nothing that requires publishers to provide the library with advance notice of major changes that might influence a cancellation decision, like new package offerings or an entirely new license contract. I’d also like to explore clauses that might address the myriad ways payment for published research is replicated across the institution (aka double-dipping), such as with the libraries paid subscription and the author’s open access article processing charges.

Closing the deal
In any change, the individual and organizational commitment to cooperation can be the hardest, but most important first step. In future posts, I’ll lay out ways organizational structures, workflows and individual skills might lead to more frequent and improved collaborative work on these issues.

Breaking the big deal of a major subscription renewal and reinvesting in open access will certainly require a deeper investigation into economics of open access and subscription infrastructure already well-covered by the literature. Perhaps, as with licensing, if we look at these economics more carefully with a different group of eyes and minds, new practical alternatives will emerge.

Underground Resource Sharing

One outcome of the Netflix discussion that took place in the library community is that there seems to be general agreement that adhering to licensing agreements is the right thing for academic librarians to do for a number of good reasons. Not only is it a good way to avoid a potential lawsuit from Netflix or a movie studio, but it sets the right example for students and faculty. How can we expect them to abide by fair use guidelines and licensing agreements if the campus librarians are openly flouting them. We need to take the moral high ground, even if Netflix represents a reasonably good solution to the DVD distribution challenge.

So I find it interesting that this blogger is complaining about not having access to JSTOR as an alumnus of some college or university. Dr. Koshary writes:

I didn’t think this would happen, now that I’m out of grad school, but I’m feeling a fresh surge of hatred for Dear Old University. I tried to log in to JSTOR to look up an article, and found that I no longer have access to JSTOR through my DOU affiliation.

I’m pretty sure Dr. Koshary knows that JSTOR is a restricted database, and that most libraries are prohibited from allowing alumni to gain access (unless they make some sort of arrangement which likely isn’t cheap – and Dr. Khosary suspects his alma mater has such an agreement). At the end of the rant against his alma mater he asks:

I don’t suppose any of my readers has a better/cheaper idea for me to regain access to JSTOR?

Turns out they do, and most of those offering advice don’t seem too concerned about taking the moral high ground – or even abiding by their university or library’s guidelines for sharing accounts:

Do what everybody I know who’s been in your position has done: get a friend who has access to a research library and its databases to share their log-in and password with you. I know I’ve helped a few people out in this way, and I’ve done it with a spring in my step and a song in my heart. Sure, it’s technically “wrong” but I’d argue that it’s more wrong to charge underemployed people money for access to scholarly resources.

I just ran into this, where my new school has some journal accesses but not many, and I crowdsourced it on facebook — some current Gradschooland students offered me their proxy server login, and another was already in the library and emailed me the pdf.

Everyone does it. Hell, I’ll give you MY login if you want

Virtually everyone I know who’s not employed by a top-tier R1 has a bootlegged EEBO account: through friends who are still grad students, advisors, or friends with cushier jobs.

Makes you wonder why we even bother with licensing agreements in the first place? As long as you can get it for free somewhere else that’s all that matters. Just how rampant is this practice? Wish I had a way to do an anonymous poll of faculty, grad students and alums to see how many think it’s all right to provide or take an account to give someone else free access to restricted resources. Based on this post – probably a lot more than we think. So much for setting good examples.