1. License Agreements: From Understanding to Negotiation ABBIE BROWN BROWNAB@MISSOURI.EDU

2. Introduction Presenter: Abbie Brown (brownab@missouri.edu) Head of Consortial Resources, University of Missouri I manage e-resources for the MERLIN consortium for two of the UM campuses 10 years in my position Experience with variety of contracts and vendors

3. Introduction Structure of the Day Workshop runs from 9AM – 12PM There will be no lunch provided, sorry! We will break every hour Directions to restrooms & water fountains

4. Introduction Overview SERU License Terms & Conditions, including language, definitions, possible pitfalls and issues Negotiation for licensing Helpful Resources for Licensing Educational Opportunities

5. Disclaimers Disclaimer #1: This will not be all-inclusiveDisclaimer #2: I am not a lawyerDisclaimer #3: You should have a lawyer

6. The Library and Legal Counsel Both have important roles in this process

7. SERU A SHARED ELECTRONIC RESOURCE UNDERSTANDING

8. SERU A NISO Best PracticeCreated by NISO with both publishers and librarians involvedSERU is an alternative to a license agreement, not a license agreementA mechanism to avoid the license negotiation process

9. How to Use SERU Library signs up for inclusion on SERU registry Ask vendors if they will agree to use SERU in lieu of license agreement Get that in writing Done!

10. Using SERU (or Trying to Use SERU) Pros Saves time for everyone! The negotiation is already done! SERU is flexible: Not locked into it, either for all vendors, or for all products from one vendor Add terms & conditions not in SERU as needed Cons Not in widespread use Limited success getting vendors to agree You still need a contract that specifies titles, pricing, term, etc.

11. License Agreements LET’S START WITH TERMINOLOGY

12. Licensing Terminology License AgreementAddendumPricing ContractFormal BidsLetter of Intent

13. Terminology: License Agreement A legal contract where the licensor grants the licensee an authorization to use (in this case) copyrighted material.

14. Terminology: Addendum An additional document that is not included in the main part of the contract. It includes additional terms such as pricing.

15. Terminology: Pricing Contract A document that includes the pricing and term for your access to the resource.

16. Terminology: Bid A formal, highly regulated process where vendors compete to provide the best deal for a given product.

17. Terminology: Letter of Intent A signed document of understanding that you intend to order the product at a specific price.

18. License Agreements GETTING STARTED WITH YOUR REVIEW

19. License Agreements Differ Widely Agreements vary a lotVendors have very different approachesLegal counsel for vendors varies a lot, too!

20. Tips on Reviewing Licenses Create a checklist for yourselfCreate your own cache of suggested languageCompare with existing licensesDon’t be afraid to ask for help

21. Terms & Conditions THE MEATY DETAILS

22. Terms & Conditions Authorized Users Authorized Use Prohibited Use Fair Use Delivery & Access Performance Obligations Term & Early Termination Perpetual License Indemnity Clause Warranties Dispute Resolution Financial Hardship Click-Through Licenses General Clauses Advanced Topics

23. T&C: Authorized Users Authorized Users are the people who should have access to the resource through some kind of relationship with your library.

24. T&C: Authorized Users You may need to negotiate the following additions: Walk-in users Independent contractors Alumni

25. T&C: Authorized Users Remote Access

26. T&C: Authorized Use Usage Rights Interlibrary loan Coursepacks E-reserves Electronic Links Scholarly Uses

27. Authorized Use: Usage Rights Usage rights should be reasonable uses of the product, such as display, download, and copying the material for personal use.

28. Authorized Use: Interlibrary Loan Interlibrary loan should be authorized under Section 108 of U.S. Copyright Law and CONTU Guidelines

29. Authorized Use: Coursepacks/eReserves Both electronic and printUsers are Authorized Users onlyNo commercial profit from sale of coursepacks

30. Authorized Use: Electronic Links At the journal, issue, and article levelsWe prefer OpenURL standard

31. Authorized Use: Scholarly Uses Scholarly sharingScholarly citationBibliographic citation

32. Authorized Use Some of this seems like it should be common sense, but it is not.

33. T&C: Prohibited Use Unauthorized use Modification of Materials Removal of Copyright Commercial Purposes

34. Prohibited Use: Unauthorized Use We should not permit any unauthorized use of the resource

35. Prohibited Use: Modification of Materials Users should not modify or create derivative work of the resource without permission

36. Prohibited Use: Removal of Notice Users should not remove the copyright or trademark notice from the materials

37. Prohibited Use: Commercial Purposes We cannot use the licensed materials for commercial purposes

38. T&C: Prohibited or Authorized? If it’s not specifically prohibited but is also not listed as authorized, is it allowed?

39. T&C: Fair Use The agreement should not restrict our rights under law. Fair Use is covered in Section 107 of U.S. Copyright Law.

40. T&C: Delivery & Access The agreement should discuss how the library gets access to the resource.

41. T&C: Performance Obligations The agreement should lay out the obligations of both sides as to performance of the resource.

42. T&C: Performance Obligations For the Licensor (Vendor): Access to the resource Quantify downtime expectations Provide support & training Completeness of the materials

43. T&C: Performance Obligations For the Licensee (Library): Use the information subject to terms of agreement Avoid agreeing to responsibilities that are beyond our authority Avoid loss of privacy to our users

44. T&C: Term & Termination The agreement should explicitly state the term of the contract (the actual start date). Notice for termination should be 30 days.

45. T&C: Early Termination Both parties should have the right for early termination due to breach of contract, with notice and a cure period.

46. T&C: Perpetual License This clause should clarify: Equivalent access as previously Same terms & conditions as previously Access fees

47. T&C: Indemnification To indemnify is to protect the other party against problems from a third party. Read carefully! Each party should have equal burden.

48. T&C: Warranties Warranties are the promises the licensor makes to the licensee. Most importantly, the licensor should have rights to the materials in the resource. Limitiations on warranties may address the amount/kind of damage that the licensor will pay.

49. T&C: Dispute Resolution Dispute resolution provisions address alternatives to lawsuits such as arbitration and mediation. The governing law part of this clause may need to be changed or removed in the case of public institutions or government agencies.

50. T&C: Financial Hardship Contingency An escape clause for multi-year agreements that allows us to terminate early with no penalties in the case of catastrophic budget cuts.

51. T&C: Right of First Refusal Similar to Financial Hardship Contingency, provides us an opportunity to escape a deal without penalty in the case of budget cuts.

52. T&C: Click-Through Licenses The click-through license is not the same as the negotiated license agreement. The parties in this license are the vendor and the end user, which opens up the possibility of conflicts.

53. T&C: Click-Through Licenses You must ask the vendor if there is a click-through license and get a copy prior to negotiation, which is an extra step.

54. T&C: Click-Through Licenses Clarify in the main agreement: Terms of the click-through must not differ from the main license In event of conflict, the main license will prevail

55. T&C: General Clauses Do not skip the boilerplate! Read through to catch anything hidden Even the standard boilerplate sometimes needs updates

56. Advanced Topics Text and Data Mining Authors’ Own Works Open Access

57. Negotiating the License HOW DO YOU GET THE VENDOR TO MAKE CHANGES?

58. Assertive Negotiation Assertiveness is fulfilling needs through cooperation and an appeal to the shared interest of all parties. Focus on the issue, not the person. Look for the win-win outcome.

59. Assertive Negotiation The vendor expects negotiationEveryone has the same goal: increasing accessYou have a problem and they can help solve it.

60. Communication with the Vendor Ask: send an email and ask straight-out for what you need. Simple!

61. Communication with the Vendor Work with a stakeholderKeep your sales rep looped inExplain what you need

62. Communication with the Vendor Work in writingUse bulleted lists to clarifyAsk for an editable license & track changesKeep your notes and use them later

63. Following Up with the Vendor “Status of Request” emailsValue of a phone callArtificial deadlines

64. Escalating Your Concerns For licensing, contact your sales repFor sales, contact your sales rep’s manager

65. Negotiating Dealbreakers A dealbreaker is a something that is an absolute must. You either get what you need or you have to walk away from the deal.

66. Negotiating Dealbreakers Dealbreaker Pros Best position for negotiation Dealbreaker Cons The lose-lose outcome

67. Negotiating without Dealbreakers You can ask for things that aren’t dealbreakers. You can often get what you want if you ask.

68. Tips in Assertive Negotiation Be aware of the marketPick your battles but make your caseConfidence will come from experience

69. RESOURCES HELPFUL RESOURCES TO HELP YOU

70. Model Licenses A Statement of Best Practice A Starting Point (ideally) Suggested wording for clauses that you can strip and use in your negotiation Model Licenses Give You: LIBLICENSE (updated 2014) California Digital Library (updated 2014) NERL (updated 2012) Some Model Licenses:

71. LIBLICENSE Project Started in 1997; hosted by the Center for Research Libraries (CRL) Provides a central repository of library licensing resourcesIncludes the LIBLICENSE Model License as well as…

72. LIBLICENSE Project Includes LIBLICENSE-L Active mailing list of current topics and concerns Searchable archives of mailing list content Licensing Terms & Conditions List of typical licensing clauses Discussion of possible issues with each clause Advice for negotiation Licensing Vocabulary Definition of words and phrases commonly found in license agreements Resources & Bibliography: Links Links to guides and tools, scholarly pubs, organizations, laws, and other relevant resources for these topics

73. California Digital Library Licensing Toolkit Publicly available, but intended for internal useThorough, useful background information Includes CDL Standard License, as well as…

74. CDL Licensing Toolkit Includes Overview of issues to be addressed in a license agreement Short explanation of each topic and its effect on the library What to look for or what to include License Agreement Checklist Addresses technical requirements and preferred practices for vendors Topics include privacy, authentication, discoverability, preservation, etc. Recently added a policy for mobile support of licensed resources Technical Guidelines for Vendors Redacted versions of license agreements that you can peruse Ordered by vendor Sample License Agreements

75. How to Get Better at This Educational OpportunitiesSelf-studyTake your time; get detail-oriented; be conscientiousReal legal advice is imperativeExperience, experience, experience

76. Educational Opportunities Conferences, workshops, webinarsSelf-study

77. Self-Study Review resources available, written by experts in the field Statements of Best Practice Model licenses, standard licenses Sample license agreements from the same vendor Articles and scholarly publications Get advice from peers [Does not take the place of true legal advice] Ask questions on LIBLICENSE mailing lists Contact peer institutions

78. Summary Links www.niso.org/workrooms/seru SERU liblicense.crl.edu LIBLICENSE www.cdlib.org/services/collections/toolkit CDL Licensing Toolkit Abbie Brown, brownab@missouri.edu Contact Me