1. The Licensing & Negotiating of Digital Content: Being Prepared
Charleston Conference 2016
Adam Chesler

2. What’s a License?
Sanction granted by one party to another to perform activities that are otherwise not permitted or clearly defined
Legal instrument establishing rights of BOTH parties
A contract; an agreement
Consists primarily of:
A body, with general terms/conditions
Appendixes/Attachments/Schedules/Exhibits
addressing specifics of your agreement

3. Why Sign A License?
“A verbal contract isn’t worth the paper it’s printed on.”
Samuel Goldwyn
“Trust everybody, but cut the cards.”
Finely Peter Dunne
“Those who trust in chance must abide by the results of chance.”
Calvin Coolidge

4. Some Other Reasons
To affirm rights/privileges and define limits; to protect against abuse
To specifically detail obligations
Traditional law/custom may not cover all relevant issues
Specific allowances may be available, but not defined elsewhere
License supersedes other instruments (eg, if license prohibits ILL, licensee cannot claim right under “fair use”)

5. Know Your Institution Confirm access is necessary
Do you have (or prefer) it via an aggregator, or a consortium?
Is it available for free (eg, Project Gutenberg) and is that platform acceptable?
Do your users prefer / need print?
Do you hold current or previously-published volumes, or is it a new order?
May affect back-file access privileges or pricing
Have IP range on-hand, or know where vendors can get it
IP info should be kept up-to-date
Know IP number(s) of your proxy server
Does your institution use SERU?
Know your internal selection/licensing process
Do you prefer to pay directly or via an agent? Consortium? By credit card?
Are your subs consolidated or spread out – and how will this be tracked?
Who approves / executes the agreement?
Have key contact points on hand
Billing, technical issues, content decisions, etc
Know your Shibboleth federation
Which / how many sites are included?
Know your link resolvers

6. Know Your Vendor Confirm if / where content exists online
Preview providers license / terms and conditions
Sales issues, terms / conditions may be in different documents
May have different licenses/terms for books and journals
Watch out for click-throughs
Will they bill through your preferred agent(s)? Or consortium / network?
If via third party, will any fees be charged back to you?
Find out who has final say over prices, terms
Get contact names
Primary and back up
May be different contacts for sales, tech support, customer service, etc
Does the vendor use SERU?
Who owns the content (publishing on behalf of other organizations?)?

7. Permitted Uses Upload to course management systems?
Content itself or links?
Print / download to personal devices?
Limits on number of pages or copies? Duration?
Satisfy ILL requests?
? Print? Print / Fax?
amongst authorized users?
Content or links?
Commercial vs non- commercial use
Are additional permissions required?
Walk in use? Alumni (remote access)?
Text / data mining

8. Service MARC records? Statistics?
COUNTER-compliant?
SUSHI?
Admin site (push vs pull)?
Assurances of up-time / notice of down-time
Participating in discovery services?
Who answers your questions?

9. Access Authentication Concurrent use restrictions
IP ranges vs passwords
Concurrent use restrictions
Single-user vs multi-user arrangements
DRM (primarily e-books)
Back-file access -- included? Or available for an extra fee?
Long-term access/preservation
CLOCKSS, LOCKSS, Portico
Post-cancellation rights
Local? Third parties? Publisher’s website? Extra costs?
Point of access
Who controls access / data – publisher or third-party host?
Still the licensor’s responsibility to ensure uptime / service
Proxy servers? Referring URLs?
Important for remote access

10. Obligations Are librarians responsible for all user actions?
Response to challenges
Penalties?
Audits / Privacy – what does the library have to share with the provider, or permit the provider to do (on-site check-ins?)?
ILL – does provider think YOU should track deliveries or behavior of recipients?

11. $$$$$$ Can you swap out unwanted content for other material?
Reduced fees for adding non-subscribed materials?
Ownership vs lease
Lease to own? Lease instead of buy? Trial to purchase?
Different fees for single vs multiple users (sat license)?
Perpetual access -- extra?
Back-files -- included or extra? Purchase option?
Single titles vs collections
Multi-site (system / consortial) pricing available?
Shared access? Associated fees?
Discounts on non-subscribed materials?
Hybrid journals (some OA content) – price break, or threshold for discount?

12. Some Legalese Breaches (resolution, remedies) Confidentiality
Definitions
What’s a Site? A User?
Governance
Indemnity clauses
Notification
How? When?
Obligations
Term
Termination
Warranties/ Representations

13. Final Observations Negotiations require information and patience
Know your institution’s / group’s strategy / needs regarding e- content
What’s negotiable? What’s not?
Don’t negotiate piecemeal: think big picture
Be aware of the vendor’s requirements / objectives
Goal is a MUTUALLY-agreeable license
Negotiations don’t have to be acrimonious and shouldn’t be personal, even if they are adversarial
Don’t hesitate to ask for explanations or alternatives because…

14. Negotiating Advice “If you don’t ask, you don’t get.”
attributed to Gandhi
“You miss 100% of the shots you don’t take.”
Wayne Gretzky

15. Some resources http://www.licensingmodels.com
information/model-license/

16. Questions?
Adam Chesler AIP Publishing 1305 Walt Whitman Road, Suite 300 Melville, NY Web: Telephone: (516)