STREAMLINE YOUR NEGOTIATION: CREATING & UPDATING A LICENSE TEMPLATE FOR YOUR INSTITUTION

LIANE TAYLOR, 10 APRIL 2014

LTAYLOR@TXSTATE.EDU

ME:• ~9 years exp• Trial by fire• CIP Adv. Licensing, 2011

WHERE I WORK:• State university • ~29k FTE• Emerging research• Flagship

I. Creating or Updating License Guidelines without Reinventing the Wheel

II.Model Licenses: Wherefore & Whither

III.The New Normal

IV.Working Together & Moving Forward

GOALS

• Stop hunting for that wording you used once!

• Consistent verbiage• Share with colleagues• Use as checklist

License Guidelines – Your Favorite Recipes

The wheel has been invented: don’t start from scratch!

EASY AS 1-2-3…1.First consider how you work, who needs access & purpose:

• Does it need to be shared?• How do you want to use it – checklist? easily copy/paste?• Consider ease of updating, keyword searching, browsing

2.Consider format options that could meet identified needs

• Spreadsheet • PPT• ERM record (Deberah England, Wright State, NASIG 2012)• Word doc with headings? Google doc? • Simplenote? Evernote? • Wiki? • Basic webpage (Google site)? • Access database? • Store in Dropbox? Sharepoint? Google?

Ex. Always; As needed; Pending

3. Download Guidelines template at:http://tinyurl.com/comparelicenses

Example: Authorized Users

EASY AS 1-2-3…4-5-6.4. Convert template to your choice of format.

5. Begin filling it in with known (or discover) institution-specific wording, needs, etc.

• Does your IT division have language reqs. already but no one told you?

• Are there state laws?

6. Peruse model licenses using Model License Comparison Table site (to be discussed)…

MODEL LICENSESLIBLICENSE (last rev. 2008) now at CRL

• Updates began in Fall 2013, Mellon support• *NEW DRAFT OUT FOR REVIEW IN mid-2014*

• Software to assist in building agreements, late ’14

• SEE: http://www.crl.edu/news/10459

NERL (last rev. 11/2012)

Licensing Models (last rev. 10/2009)

California Digital Library (last rev. 2011)

Florida Virtual Campus (last rev. 2013)• Set of guidelines w/sample clauses

http://tinyurl.com/comparelicenses

WHEN EXCEPTIONS BECOME THE RULE

NEW USES/

PERMISSIONS

• Data/Text Mining

• 3rd Party Usage Statistic Collection

• Commercialization Offices/Incubators

• Cloud Hosting/Software

• Repositories/Author’s Rights

• Discovery Service Participation

• Mobile Devices/Downloading

NEW FORMATS/

ACCESS/ACQ MODELS

• E-Books – ILL/E-Reserve Clauses, etc.

• Streaming Video (3rd party & self-hosting)

• Image Databases

• Data Sets

• Auto-renewal

• Perpetual Access & Completeness of Content

• Fair Use / Reasonable Use

• E-Reserves

• Increased use of EULAs/click-thru agreements

• More attention to ADA – lawsuits, requirements

UNSOLVED PROBLEMS

WE NEED [NEW, REVISED] STANDARD LANGUAGE FOR…

TEXT AND DATA MINING (TDM)

BACKGROUND

• Eefke Smit, International Association of STM PublishersContent Mining: A Short Introduction to Practices and Policies, 2011 http://www.stm-assoc.org/futurelab-webinars/

• ARL – SPARC, “Developments in Publishers’ Text and Data Mining (TDM) Policy”, 2014http://www.sparc.arl.org/resource/developments-publishers’-text-and-data-mining-tdm-policy

MANY ARTICLES -> COMPUTERS! -> ANALYSIS, ORGANIZATION

TDM: STANDARD LANGUAGE?

Text and Data Mining: STM Statement & Sample Licence (with background info) http://www.stm-assoc.org/text-and-data-mining-stm-statement-sample-licence/

Includes: Sample license for Text and Data Mining of subscribed content

--

Ann Okerson has said the new LIBLICENSE model license will include TDM language (Draft, mid-2014)

TDM: ELSEVIER’S NEW POLICY

“For academic customers, text- and data-mining rights for non-commercial purposes will be included in all new ScienceDirect subscription agreements and upon renewal for existing customers. Librarians interested in adding the TDM clause to their existing agreement prior to renewal are able to request a simple contract amendment via their Elsevier Account Manager.”

--

“Elsevier updates text-mining policy to improve access for researchers”, Elsevier Connect, Chris Shillum, 31 January 2014, http://www.elsevier.com/connect/elsevier-updates-text-mining-policy-to-improve-access-for-researchers

Developments in Publishers’ Text and Data Mining (TDM) Policy

http://www.sparc.arl.org/resource/developments-publishers’-text-and-data-mining-tdm-policy

• If multi-institutional research team, each institution needs to have TDM clause in license

• Requires the use of ScienceDirect API, no other TDM tech

• Only TEXT, not IMAGE mining

• Must use non-commercial license when publishing

RESPONSE TO ELSEVIER

ISSUES:

• Researchers find it impractical to negotiate multiple bilateral agreements with subscription-based publishers in order to get authorisation to TDM subscribed content.

• Subscription-based publishers find it impractical to negotiate multiple bilateral agreements with researchers and institutions in order to authorise TDM of subscribed content.

CROSSREF PROSPECT/TDM SOLUTION:

• Publishers can register click-though TDM terms and conditions designed for researchers who already have legitimate access to the content.

• Researchers can review, and accept/reject those T&Cs.

• The click-through service will then provide researchers with a secret “Client API Token” which the researcher can use with their TDM tools when requesting the full text using the CrossRef Metadata API described above.

Excerpted from http://prospectsupport.labs.crossref.org/

COMMERCIALIZATION CENTERS/ INCUBATORS• Commercial goals• Research teams/startups May be part faculty/part external hires

• May be in offices with your IP RANGE. • Often in areas like chemistry, engineering (applied research)• Great Summary: Ye Li’s (U Mich) presentation in the webinar

How are library services evolving to support applied research and discipline-specific researchers? (Bright Talk/Elsevier , 13 March 2014)

• Ye’s presentation starts at slide 33, time 28m:19s

From: “Pricing options for academia and commercial companies”, University of Applied Sciences, Muenster Germany 2009

ACCESSIBILTY COMPLIANCETo what extent are library databases required to be compliant with federal, state, school system, or institutional policies?

• Section 508 of the Rehabilitation Act, amended in 1998, sets accessibility standards for electronic & information resources; applicable to federal agencies; Subpart B, Section 1194.22 relates to web-based information

• Higher Education Litigation Timeline, California State University-San Marcos http://www.csusm.edu/accessibility/policies/lawsuits.html

• UC Berkeley/DRA, 2011• Penn State/NFB, 2012

• ER&L 2014, “Working Toward Greater Accessibility: Navigating Compliance Requirements in E-Resource Acquisitions” Erin Finnerty (Temple); Laura DeLancey (Western KY); John Vinke (Purdue University-Calumet)

LANGUAGE -> OBLIGATIONS

CDL/LIBLICENSE:

• Licensor shall make reasonable efforts to comply with the Americans with Disabilities Act (ADA) requirements, Section 508 of the Rehabilitation Act Amendments, and provide Licensee current completed Voluntary Product Accessibility Template (VPAT)

NERL :

• Compliance with Americans with Disabilities Act. Licensor shall comply with the Americans with Disabilities Act (ADA), by supporting assistive software or devices such as large print interfaces, voice-activated input, and alternate keyboard or pointer interfaces in a manner consistent with the Web Content Accessibility Guidelines published by the World Wide Web Consortium's Web Accessibility Initiative, which may be found at http://www.w3.org/WAI/GL/#Publications.

UT-AUSTIN, ADAPTED LANGUAGE

Accessibility by Individuals with Disabilities. Licensor represents and warrants that the [content, product] comply with the [state law, W3C, 508]. To the extent Licensor becomes aware that the [content, product], or any portion thereof, do not satisfy the [above], then Licensor represents and warrants that it will, at no cost to Licensee, either (1) perform all necessary remediation to make the [content, product] satisfy the [requirements] or (2) replace the [product] with new [product] that satisfy the [requirements]. In the event that Licensor fails or is unable to do so, then the Licensee may terminate this Agreement and Licensor will refund to the Licensee all amounts the Licensee has paid under this Agreement within thirty (30) days after the termination date.

QUESTIONS REMAIN• Do for all?

• Testing? (HiSoftware Compliance Sheriff; JAWS audit)

• Keep track of non-compliance?

• Keep track of if vendor is improving?

• How can we get all primary library vendors to have VPATS?

ALUMNI

NEW V

ENDORS

EX: NON-INSTITUTIONAL USE

WHAT THE HECK?

Non-institutional use (including by faculty, staff, affiliated researchers and independent contractors), including those located at different locations, but within Licensee’s company or related or affiliated companies, shall not be considered Authorized Users.

SOLUTION(ISH)

Use is limited to educational, scientific, and research purposes for Licensee’s institution. All other uses are prohibited.

DATA SETS – NOT ON CD

PROBLEM: Customer agrees upon termination, expiration, or default of the Agreement to cease and have all Users cease all further use of the Product; to destroy all printed or electronic copies of the Product; either to return to the Company or destroy the original and any copies of documentation provided; and to certify to the Company that such has been done; and to pay the Company all monies due and owing

ADD DISCLAIMER: Company understands that the ability to destroy existing copies is limited for students and researchers that have left the Customer. As such Customer will simply utilize its best efforts to destroy existing copies.

IMAGES, PROMOTIONAL USE

When license e-resource w/images, do we need to specify that images can be used on websites & in promotional materials, as well as for educational use/class presentations?

Authorized Users (NOTE: no walk-ins) can use images from Licensed Materials on university websites, in emails, and within news publications to promote events, services, and resources as long as the product containing the image is not sold [for commericial use/profit].

BACKUP COPIES OF STREAMING FILES: 108C IS NOT YOUR FRIEND!

“The right to archive under subsection (c) (for published works) applies only to replacement of a damaged, deteriorating, lost or stolen copy, or when the format of the recording has become obsolete, and then only when a reasonable effort to locate an unused replacement at a fair price or a device that accommodates the format has proven unsuccessful!” - Copyright Crash Course, “Copyright in the Library - Making Copies: Archiving”, Georgia Harper, Univ. of Texas Libraries

…BUT HOW TO SAY…?NERL: Licensee is authorized to make such further copies in perpetuity as it may deem necessary for purposes of archival preservation, refreshing, or migration, including migration to other formats, so long as the purpose of such copying is solely for continued use and/or archival retention of the data and does not violate or extend the use rights contained in this Agreement.

ALTERNATIVE: The Licensor shall allow the Licensee to participate in the archiving of one complete copy of the Licensed Materials, and to use such archived Licensed Materials in the event the original copy is scratched, broken, or otherwise made unplayable in the normal course of use.

DEFINING REASONABLE AMOUNT

Vendor: “Reasonable Amount” shall mean not more than 10% of the content contained in the Licensed Materials.

Proposal: The term “reasonable” as it relates to amounts of licensed material subject to copying, duplication, or dissemination by licensee and its users will be determined on a case by case basis using the four Fair Use analysis factors as codified at 17 United States Code Sec. 107.

CLOUD PLATFORM DISTRIBUTION

Licensee can distribute the software via a cloud platform to workstations located on the primary and satellite campuses, with appropriate security ensuring that access is not granted to other locations or institutions.

CLINGING ON TO SINGLE-SITE.

• One “administration”

• Shared IP range

• No separate FTE count

DO OUR COMPLETENESS OF CONTENT CLAUSES NEED MORE TEETH?

See recording of: ER&L 2013, Keynote, Dan Tonkery, “Improving communication and relationships between librarians and publishers”

WHAT’S NOT WORKING

• Making backup copies of streaming files!

• Half payment while testing completeness of content

• PERPETUAL ACCESS

• Requiring publisher participation in PORTICO/LOCKSS

• Blanket “fair use” permissions

• Requiring all changes to EULA to go through you

• Requiring Discovery Services participation

• Grant of your researchers’ rights to deposit into an open repository

Authorized Users must be those users who are using the Licensed Materials for legitimate educational purposes, whether as a mental health professional in training or as part of other relevant Licensee-approved educational courses or assignments.

The Licensee shall encourage Authorized Users to view the Licensed Materials in as private an environment as possible, and out of sight or hearing range of unauthorized users as reasonably practical.

We need to stop licensing in silos!

How can we better share what’s not working,

exceptional clauses & new, sticky issues with

each other, as a community?

How can we leverage our community power, to say no to untenable

licensing terms?

Do you want to help answer these questions? Do you have ideas of how we can better work together?

Let me know: LTAYLOR@TXSTATE.EDU

LICENSING @ NASIG 2014

Wednesday, April 30, 1-5p

Preconference: Building Your Licensing and Negotiation Skills Toolkit

Claire Dygert, Assistant Director for Licensing and E-Resources, Florida Virtual Campus

Saturday, May 3, 10:40-11:40

The Licensing Lifecycle: From Negotiation to Compliance

Eric Hartnett & Jane Smith , Texas A&M University

Saturday, May 3, 3:50-4:50

Lassoing the Licensing Beast: How Electronic Resources Librarians can build competency and advocate for wrangling electronic content licensing.

Shannon Regan, Licensed Content Librarian, Mercer University

Liane Taylor, ltaylor@txstate.edu

PHOTO CREDITSSlide 1: Eole Wind, Entering Hyperspace, https://www.flickr.com/photos/73491156@N00/380316678, License: https://creativecommons.org/licenses/by-nc-sa/2.0/

Slide 2: Trois Têtes (TT) , Hi, http://www.flickr.com/photos/33286810@N00/2097531807/, License: http://creativecommons.org/licenses/by-nc/2.0/

Slide 3: Pietro Izzo, Real Soccer, http://www.flickr.com/photos/22443621@N00/208878316, License: https://creativecommons.org/licenses/by-nc-sa/2.0/

Slide 4: Killbox, corn_bread, http://www.flickr.com/photos/58068110@N00/2651210899/, License: https://creativecommons.org/licenses/by-nc/2.0/

Slide 5: Koocbor (Rob) Bike Wheel, http://www.flickr.com/photos/30451996@N00/4505318710, License: https://creativecommons.org/licenses/by-sa/2.0/

Slide 10: Rawdon Fox, Odd One Out, http://www.flickr.com/photos/34739556@N04/6802867364, License: https://creativecommons.org/licenses/by-nc/2.0/

Slide 14: Gord McKenna, There was only one rule, http://www.flickr.com/photos/23196822@N00/315490873/, License: http://creativecommons.org/licenses/by-nc-nd/2.0/

Slide 16: http://www.flickr.com/photos/47325272@N00/2541408630/, License: https://creativecommons.org/licenses/by/2.0/

PHOTO CREDITSSlide 17-21: http://www.flickr.com/photos/88875472@N00/3856456237/ n3wjack's world in pixels License: https://creativecommons.org/licenses/by-sa/2.0/

Slide 22: http://www.flickr.com/photos/7578081@N07/2918682767/ swisscan https://creativecommons.org/licenses/by-nc-sa/2.0/

Slide 29: Wolkman-K, The Safety, http://www.flickr.com/photos/9948642@N05/3673428383/, License: http://creativecommons.org/licenses/by-nc/2.0/

Slide 36: kevin dooley, Sky symphony, http://www.flickr.com/photos/12836528@N00/5192063662/, License: http://creativecommons.org/licenses/by/2.0

Slide 37: SuperFantastic, regret, http://www.flickr.com/photos/35423169@N00/31545146 License: http://creativecommons.org/licenses/by/2.0

Slide 38:Nora Arias Loftis, Go ahead; make my day, http://www.flickr.com/photos/19136940@N00/275356843/ License: http://creativecommons.org/licenses/by-nc-nd/2.0/

Slide 41: Dale, Kentucky Farm, http://www.flickr.com/photos/12654904@N05/9661092099 , License: https://creativecommons.org/licenses/by/2.0/

Slide 43: Vern Hart, DSP 147: Thank You! 2007-10-11, http://www.flickr.com/photos/37183619@N00/1574355240, License: http://creativecommons.org/licenses/by-nc-sa/2.0/