N A S I G 2 0 1 4F T . W O R T H , T X

BUILDING YOUR LICENSING AND NEGOTIATION SKILLS TOOLKIT

INTRODUCTIONS

Claire DygertAssistant Director for Licensing and E-ResourcesFlorida Virtual Campus

THE FLORIDA VIRTUAL CAMPUS

• Florida Virtual Campus (FLVC), July 1, 2012• Florida Center for Library Automation (FCLA). Supported

libraries of the 11 State Universities.• College Center for Library Automation (CCLA). Supported

libraries of the 28 Colleges. • Florida Distance Learning Consortium (FDLC). Maintained

the Higher Education Distance Learning Course Catalog. • Florida Center for Advising and Academic Support (aka

“FACTS.org”).• Provide some service to ICUF libraries for a fee.

• Contract with the University of Florida to provide support services, including legal and procurement services.

E-RESOURCE LICENSING

• $7.1 million e-resource budget to support the SUS/FCS • Group licensing activities for 28 FCS, working the

SUS into process. Value in 2014 $1.7 million• E-journal package negotiation and management

on behalf of SUS & ICUF. Value in 2014 $16 million.• Fees from ICUF institutions generate about

$38,000 annually in cost-recovery

BEFORE FLVC

• Emmanuel College Library, 1990 - 1992• Circulation/Reserves Coordinator• No single public computer in library• Card catalog – doing retrospective conversion to MARC book

by book• Completely neglected periodicals room

• Everett Community College Library, 1992-1996• Library Technician II – Serials & ILL• CD-ROM Indexes• CD-ROM Indexes + Selected FT

BEFORE FLVC…

• University of Washington, 1994-1996• MLIS Student• Internet existed as text-based, command line environment

extent, with gopher, FTP, Bulletin Boards, etc.• TULIP Project• Mosaic, GUI released in 1993

• American University Library, 1996-2007• Department Head for Serials & E-Resources, and Digital

Library Coordinator• Handful of electronic, web-based resources• Negotiated my first license agreement for BHA• Project Muse – online periodicals from John Hopkins University

Press

TRANSFORMATION OF THE INFORMATION ENVIRONMENT

OWNERSHIP(Copyright law)

To

ACCESS(Contract law)

OVERVIEW OF PART I

• Introductions• Why do we have license agreement and what are

they?• Review laws that effect use of content and the role

of the license agreement as a legal document• Explore the anatomy of a license agreement• Focus on authorized use clauses• Draw upon Florida Virtual Campus Guidelines for E-

Resource License Agreements

• Discuss emerging licensing issues• How to get started working with license agreements

COPYRIGHT LAW

• Copyright Law grants a copyright owner distribution and reproduction rights, with important exceptions:• First-sale doctrine: has to do with distribution rights• Allows libraries to lend, sell, discard print materials

• Fair-use: has to do with reproduction rights • Provides for use in criticism, comment, news reporting,

teaching, scholarship, and research.• Four factors of consideration: purpose, nature of copyrighted

work, amount of content used, effect upon market

• Educational & library exceptionsInterlibrary loan, use in course packs

THREAT OF THE DIGITAL ENVIRONMENT

• Content providers unfamiliarity with libraries and their practices• Book jobbers and subscription agents served as

middleman between libraries and content providers• License agreements, as contracts, detail specific rights

and responsibilities• If libraries have the right to lend content, what are the

boundaries? Ease of transmission of digital formats could allow replication of content over time at multiple locations.

LICENSE AGREEMENTS

• License agreements are contracts, and based on the law of contract. • Agreements between two parties wherein one

party grants permission to another to engage in some activity (e.g., the right to have authorized users access an online database)• Generally share a similar format• Contract terms take precedence over existing

rights and exceptions granted under Copyright Law

FROM THE SIMPLE TO COMPLEX

• License agreements vary greatly in complexity• Licenses for aggregator databases, online reference

resources, collection development tools, etc., tend to be brief and relatively straightforward

• E-journal package licenses, e-book licenses, tend to be lengthier and more complex

• SERU: Shared Electronic Resource Understanding• NISO Best Practice• Details standard business practices• Copyright Law governs use, so no license is required

ANATOMY OF A LICENSE AGREEMENT

• Description of “Licensor” and “Licensee”• Glossary of Terms• Authorized Users/Site• Authorized Uses• Licensor Responsibilities• Licensee Responsibilities• Mutual Obligations• Legal Issues (Governing Law, Indemnification,

etc.)• Schedules and Amendments

DEFINING LICENSOR & LICENSEE

• Licensor is the content provider, should already be detailed in the contract• Licensee is the subscriber. The term “Licensee”

can be used to include multiple participating institutions.• Your institution may require it be represented in a very

specific way in contracts. For example:

“The University of Florida Board of Trustees, authorized agent for the Florida Virtual Campus, an entity created by the State of Florida, pursuant to Section 1006.73, Florida Statutes, with an address at 1753 West Paul Dirac Drive, Tallahassee, FL 32310.”

GLOSSARY OF TERMS

1. KEY DEFINITIONS In this Licence, the following terms shall have the following meanings:

Commercial Use

Use for the purposes of monetary reward (whether by or for the Consortium or a Member or an Authorised User) by means of sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Materials.

Course Packs A collection or compilation of materials (e.g. book chapters, journal articles) assembled by members of staff of a Member for use by students in a class for the purposes of instruction.

Effective Date The date on which this Licence will be deemed to have taken effect.

Electronic Reserve Electronic copies of materials (e.g. book chapters, journal articles) made and stored on the Secure Network by the Consortium or by a Member for use by students in connection with specific courses of instruction offered by a Member to its students.

AUTHORIZED USERS

• Defined by affiliation with university, not geographic location

• Be as inclusive as possible (include contractors and affiliated users)

• Include provision for “walk-in” or “occasional” users

Sample clause:“Authorized users include those persons affiliated with Licensee as students, faculty, staff, and independent contractors of Licensee and its participating institutions, regardless of the physical location of such persons, as well as walk-in users.”

AUTHORIZED SITE

• Should be defined at the institutional rather than library level; not geographically based

• Allow access by all users who have the right to access the institutional network

Sample clause:“The authorized site consists of all geographic locations and/or campuses of the institutions that are identified in the agreement as Participating Institutions. All authorized users who have right of entry to the network are granted access regardless of their physical location. This definition may include institutions with joint-use facilities that reside on a single network.”

AUTHORIZED USES

• Retention of all rights in accordance with U.S. Copyright Law

Sample clause:“The Publisher agrees to grant to the Consortium the non-exclusive and non-transferrable right to give Authorized Users access to the Licensed Materials via a Secure Network for the purposes of research, teaching, and private study and other uses in accordance with U.S. Copyright Law, including fair use and library reproduction rights.”

OR

“Nothing in this License shall in any way exclude, modify, or affect any of the Consortium’s or any Member’s statutory rights under national copyright law.”

INTERLIBRARY LOAN

• Electronic ILL should be allowed• Remove references to: • the provision of data or statistics on ILL use, • type of library• geographic limitations to ILL (e.g., ILL to U.S. only)

Sample clause:“Licensee may supply through interlibrary loan a copy of an individual document being part of the Licensed Materials by post, fax or secure electronic transmission for the purposes of non-commercial use. Specifically, copies may be made in compliance with Section 108 of the U.S. Copyright Act.”

INTERLIBRARY LOAN & E-BOOKS

• ILL and e-books remains problematic• Loaning e-book chapters acceptable • Tools for loaning e-books under development

Sample clause:“Participating libraries may supply through Interlibrary Loan (ILL) chapters of e-book content by post, fax or secure electronic transmission. Specifically, copies may be made in compliance with Section 108 of the U.S. Copyright Act and the limitation of the [Vendor] system.”

USE IN COURSES, CMS

• May be covered in a single clause or multiple clauses

Sample clause:“Licensee and Authorized Users may use a reasonable portion of the Licensed Materials in the preparation of course packs, course reserves or other educational materials as well as within secure course management systems.”

COMMERCIAL USE

• When restrictions to commercial use appear, a clarifying clause should be present

Sample clause:“For the avoidance of doubt, charging administrative fees to cover the costs of making permitted copies is not prohibited. Use by the Consortium or a Member or by an Authorized User of the Licensed Materials in the course of research funded by a commercial organization, is not Commercial Use.”

PERPETUAL ACCESS

• Perpetual rights vary by type of resource• Aggregator databases and other databases generally don’t

provide perpetual access rights• E-journal contracts generally include perpetual access rights• Perpetual access fees should be detailed in the Fee Schedule

Sample clause:“Perpetual access to the full text will be provided by the Publisher either by continuing online access via the Publisher’s server or by supplying the electronic files to each subscribing Institution in an electronic medium mutually agreed between the parties. Continuing archival access and use is subject to the terms and conditions of the expired License.”

LICENSOR RESPONSIBILITIES

• Privacy• Quality of service• Provision of usage statistics• Collection of usage statistics by third party

• Provision for withdrawn materials

LICENSEE RESPONSIBILITIES

• Notifying users of license terms • Avoiding breach(Language requiring the licensee to do the above should be edited to make reasonable efforts to)• Strike confidentiality – Florida Public Records Law• Discipline for breach – requirements should be

struck

LEGAL ISSUES

• Governing law – should be state of home institution, or agreement should “remain silent”• Website or “Click through” user agreements –

written agreement supersedes online agreement• Changes in writing and agreed to by both parties

THINGS I ASK A LAWYER ABOUT

These are complex legal concepts; legal counsel should be sought for clauses of concern.

• Indemnification• Warranties• Limitations of Liability

SIGNATURE PAGE

• Typically concludes the main body of the license• Precedes any addenda or schedules and

attachments• Should be signed by an authorized individual• Delegation of authority often capped at a certain dollar

amount• Without proper authority, individual signing could be held

personally responsible

SCHEDULES AND ATTACHMENTS

• Useful for laying out terms of the contract that don’t fit neatly into the main body of the contract• May include:• Fee schedules• Details on participating libraries• Lists/descriptions of licensed content• Invoicing instructions• Contact information

• Are referenced in the main body of the contract

OTHER LICENSING ISSUES

• MOOCs• ADA Compliance• Text and Data Mining (TDM)• ILL for E-books – Promise of Occam’s Reader• Video Streaming

GETTING STARTED IN LICENSING

• Don’t be afraid/intimidated/hesitant• Educate yourself • Develop local licensing guidelines (or steal liberally

from others!)• Ask for a copy of the agreement early in the

acquisitions process; request an editable format if necessary

• Use the “Track Changes” feature of your word processing program to edit clauses, adding comments liberally

• Err on the side of asking for more rather than fewer changes

WHAT’S NEXT

• Send the marked up agreement (often called the “redline” copy), complete (or replete!) with comments to your sales representative• Refer them to any guidelines or best practices

you employed• Ask them what their timeline for review is• Invite them to contact you if they have any

questions• Usually one more iteration• Conclusion to signature will vary at each

institution

DEVELOP A NETWORK OF SUPPORT

• Educate your colleagues• Purchasing office• Experience dealing with contracts and negotiations

• Office of general counsel• Provide expertise on legal issues such as indemnification,

warranties, intellectual property issues• Good partner in developing licensing guidelines

• Define a workflow, identify responsibilities, and establish expectations for turnaround times

LICENSING RESOURCES

The Librarian’s Legal Companion for Licensing Information Resources and Services, by Thomas A. Lipinski

FLVC Licensing Guidelines, Version IIIhttps://fclaweb.fcla.edu/uploads/FLVC_Licensing_Guidelines_Version_III_Final.pdf

LIBLICENSE PROJECT http://liblicense.crl.edu/

U.S. Copyright Lawhttp://www.copyright.gov/title17/

SERUhttp://www.niso.org/workrooms/seru

P A R T I I : N E G O T I A T I N G W I T H C O N F I D E N C E

BUILDING YOUR LICENSING AND NEGOTIATION SKILLS TOOLKIT

OVERVIEW: PART II

• The Importance of Good Negotiation Skills• The Process of Negotiation• Planning & Information Gathering• Putting together a Proposal• Negotiating the Deal

• Building a Negotiation Support System• Learning from Your Mistakes

THE IMPORTANCE OF NEGOTIATION

“Only librarians, on the whole, complain about the Big Deal, since their researchers are mostly not aware of costs and cost increases. And librarians have limited power. They also have no strong track record when it comes to negotiating, only in rare cases employing professional negotiators, it seems. That is their weakness, and the publishers’ strength”.

Jan Velterop, quoted in Reed Elsevier NV: Feedback from Meeting with Jan Velterop, FLASH NOTE, 6 February 2012, published by Cheuvreux Credit Agricole Group.

• What does negotiation mean to you?• Winning or losing?• Arguing with the opposition?• Gaining or losing power?• Reaching agreement?

• What emotions arise when you picture yourself having to negotiate? • Angry?• Intimidated?• Excited?

WHAT DOES NEGOTIATION MEAN TO YOU?

“GETTING TO YES”: PRINCIPLED VS. POSITIONAL BARGAINING

• Positional bargaining• Depends upon each side taking – and then giving up – a

succession of positions. • Often becomes a contest of wills, endangering ongoing

relationships. • Egos become identified with the position.

“GETTING TO YES”: PRINCIPLED VS. POSITIONAL BARGAINING

Principled Bargaining • Separates the people from the problem or issue• Focuses on interests, not positions• Creates options for mutual gain• Insists on using objective criteria

Scenario: Major e-journal package up for renewal.

THE PLANNING PROCESS

• Information Gathering• Assessment• Building Leverage

• OUTCOME: Development of an informed proposal

INFORMATION GATHERING

• Know the publisher’s business• STM publishing is a high profit margin segment of the

Media industry, and maintained revenue growth despite the recession, with an average annual profit growth of around 10% p.a.

• Do you know what the profit growth is of the publisher you are negotiating with?

• Trends in the publishing industry, such as increased use of off-shoring and out-sourcing have reduced production and operation costs in recent years.

INFORMATION GATHERING

• Know your institution’s/library’s business• How have library and university budgets been impacted

over the past 3-5 years? • How has this effected you library’s buying power over a

specific period of time? • What impact have changes in curricular and research

needs had on your library?• What level of contribution have your own faculty made to

the publisher’s content?

INFORMATION GATHERING

• What deals are other institutions/consortia getting?• ICOLC conferences/annual survey• Public records requests• Literature review may reveal trends

ASSESSMENT

• How is the collection being used? • Are there subscriptions held that are no longer

needed to support curricular and research needs? • Does cost-per-use analysis identify content more

advantageously purchased on a per transaction basis? • How does the cost compare to other publisher

contracts?

BUILDING LEVERAGE

• Critical when dealing with sole source providers• Are there other libraries you can partner with? • Springer Contract: 11 SUS + 8 ICUF + CCLA/FCS• Oxford University Press: 11 SUS + 7 ICUF + 1 FCS• Cambridge University Press: 11 SUS + 4 ICUF• SAGE: 11 SUS + CCLA/FCS• Wiley: 11 SUS + 10 ICUF• Taylor & Francis (new contract for 2014): 9 SUS + 9 ICUF

• Is there a new market you can help the publisher enter?• How much investment has your library made in the company

across product lines (backfiles, reference works, etc.) that contributed to their success?

• Do you have support (or at least awareness!) from your faculty?• Use the competiveness of the marketplace to your advantage

PUTTING TOGETHER A PROPOSAL

• Integrate everything learned in the information gathering, assessment, and leverage building process• May provide one or more (but not too many!)

options • Clearly articulate the terms the library wants• Content to be licensed• Pricing terms and fees• Treatment of transfer & new start titles• Discounts for print

• Demonstrate mutual gain

PROPOSALS AND PRINCIPLED NEGOTIATION

• Separates the people from the issues• The proposal details the issues, not the people

• Focuses on interests, not positions• Interest is focused on finding terms that both sides can

agree on

• Creates options for mutual gain• Provides new opportunities for publisher while meeting

needs of library

• Uses objective criteria• Bargaining is based upon verifiable facts

Scenario: Mid contract with major STEM publisher when the economic crisis hit.

THE SETTING

• Budget cuts significant at some institutions, libraries in need of relief• Publisher employing a divide and conquer

approach• FLVC acted as a single voice for all participating

institutions• Proposal to reduce mid-term contract costs

“Nearly all of the libraries of the eleven State Universities suffered budget cuts in the past two fiscal year cycles… Representative is the Florida State University (FSU) library, which underwent a cut of 6% to library operations in FY2007-08, followed by an 8% cut to the library materials budget in FY2008-2009… The FSU cuts…resulted in the cancellation of over 30 databases….Now the libraries of the Florida State University System are reporting that, on average, they are being asked to plan for additional 10% budget cuts in FY2009-2010. Something has got to give.”

“In a February 20, 2009 Times Online article, …chief executive of …, reported a “21 per cent increase in adjusted full year pre-tax profits.” … also predicted “that 80 per cent of the business would enjoy growth during 2009, despite the grim economic backdrop.” The article concludes by noting that shares “have risen by 25 per cent during …'s tenure” – roughly the same time period during which the Florida SUS have themselves so heavily invested in … content.”

2009 2010 2011 20120

1,000,000

2,000,000

3,000,000

4,000,000

5,000,000

6,000,000

7,000,000

8,000,000

9,000,000Florida SUS Proposal

Publisher Proposed FeesSUL Buying PowerSUL Proposal

NEGOTIATING: INTERNAL ISSUES

• Make sure all your constituents are on the same page.• Set your collective expectations high.• Know where your points of compromise are.• Use the need to confer with internal groups to

buy time, avoid making commitments under pressure.

NEGOTIATING: EXTERNAL ISSUES

• Identify and negotiate with the decision maker from the beginning.• Meet in person if at all possible, at least initially.• Set the agenda and tone for the meeting.• Set your expectations high.• Retain the right to keep information confidential.• Be prepared to answer (or not answer) difficult

questions.• Use the publisher’s terminology as appropriate.

NEGOTIATING : COMMUNICATION SKILLS

• Listen. Hard. • Probe for information.• Allow for silences.• Take a break if tempers get flared.• Summarize points of agreement and

understanding periodically and document them.• Be yourself, but know your strengths and

weaknesses.

MOST IMPORTANTLY!

Personal integrity is of the utmost importance. Never lie or promise

something you can’t deliver.

BUILDING A NEGOTIATION SUPPORT SYSTEM

• Develop a network of support on your campus• Purchasing Office• Office of General Counsel• Business Librarian

• Develop Licensing Guidelines to serve as objective criteria for contracts• MOU for libraries outside your system• Consider using a negotiation team• Attend a corporate negotiation seminar

LEARN FROM YOUR MISTAKES AND SUCCESSES

• No one was born an expert negotiator!• Assess each negotiation experience• What went right, what went wrong?• What could I have done better?• How did I feel emotionally?

• Forgive yourself for mistakes • Continue to experiment and adjust your

negotiation style as you learn and grow

RECOMMENDED READING

• Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury.• Bargaining for Advantage: Negotiation Strategies

for Reasonable People, by G. Richard Shell.

QUESTIONS?

Contact me:

Claire T. DygertFlorida Virtual Campus

352-415-6829cdygert@flvc.org