Librarians were among the first professionals to be responsible for acquiring access to online content, years before the advent of the Internet. Back in the "old days" of electric typewriters, librarians were negotiating agreements to use Dialog, OCLC, LexisNexis, and Westlaw among other online databases. However, it is clear that we are increasingly being required to obtain licenses for electronic information as our users decrease their reliance on print sources for doing research. This fundamental shift from ownership to access has many ramifications for us. Now more than ever, librarians need to understand the nature of licenses and how to negotiate the best possible agreement with their information vendors.
Fortunately, there are many resources that we can use to help educate ourselves about the business of licensing. In fact, as I write this article in early February, AALL has announced that in association with the American Library Association, it will be offering members a free 6-week e-mail tutorial entitled "Signing on the Dotted Line: Licensing Essentials for Library Professionals." The tutorial is written by a leading authority in the field, Lesley Ann Harris, who is also the author of Licensing Digital Content: A Practical Guide for Libraries. If you were not able to participate in this tutorial, I am sure that members will be able to obtain copies of the materials from AALL Headquarters.
In addition to this most recent educational offering from AALL, a number of other library associations have been providing seminars on licensing in the past couple of years. I attended an excellent videoconference in October of 1999 presented by the Special Libraries Association on "Effective Negotiating Techniques for Licensing Content." I will summarize below a number of key points made in the program materials written by the presenters, Jane Dysart, Tanya Wood Mollenauer, Ann Lee, and William Goodrich Jones. Anne Klinefelter lists some additional web resources in the Notes to her article, "Copyright and Electronic Library Resources: an Overview of How the Law is Affecting Traditional Library Services," Legal Reference Services Quarterly, vol.19, nos.3/4, 2001. pp.175-193. She indicates that the Association of Research Libraries has sponsored licensing seminars for librarians. Another important web resource she notes is Yale University's Library Liblicense: Licensing Digital Information: A Resource for Librarians.
The most obvious difference between buying a book and buying a license is that with the former you now own something tangible, while with the latter you have only bought access to a database. Even though copyright law can govern your use of both the information in the book and the information you license, there is one important right that is only available to the buyers of print materials. The First Sale Doctrine gives the purchaser of a copyrighted book or journal the right to sell or lend that entire work. This copyright provision, which is the foundation of all lending libraries, is not available to the licensee of electronic information, because there has never been a "sale" to begin with, merely a contractual agreement to provide access. In short, licenses are contracts, the terms of which have to be negotiated.
Black's Law Dictionary defines a license as "a revocable permission to commit some act that would otherwise be unlawful." For example, but for a license, you would be infringing the copyright of the content owner whenever you printed out the results of a database search. There are a number of different kinds of licenses, including non-negotiated shrink wrap and click-through licenses. This column will address only those licenses that are initially drafted by a vendor, but open to negotiation by both the content provider and user. The purpose of the negotiation is to reach agreement on specific content to be made accessible for specific users over a specific length of time.
Ideally, the license that you negotiate will fulfill the bottom line requirements of both parties. The library will get access to valuable electronic resources at a reasonable price that will meet the information needs of its users while maintaining the right to fair use and other copyright protections. The content vendor will be able to control its intellectual property, while getting a fair profit from its efforts at aggregating and distributing the information that librarians and their users want. When you have negotiated a good license, you will both know exactly what you are getting out of your agreement and you will both be happy that you are getting it.
"Negotiation" according to Black's means "a consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter." The number of people negotiating on each side can vary depending on what kind of library is involved and what type of vendor. What will not vary, however, is the need for the parties to build a good working relationship based on mutual trust. Both parties must insure that they treat each other fairly and with respect, while understanding the needs and limitations of the other side.
There are a number of recognized bargaining styles. For further assistance
in determining the style that best suits you personally, you can consult
Negotiating Style Profile by Rollin Glaser and Christine Glaser (800-633-4533)
or the Thomas-Kilmann Conflict Resolution Inventory by Kenneth W. Thomas
and Ralph H. Kilmann (800-759-4266).
While the style of negotiation can differ, the substance does not. First
and foremost, you have to be well prepared. You will need to know exactly
the content you want to have access to, in what format, for how many users,
at which locations, with what reproduction and distribution rights, for
how long, with what level of service, and with what kind of price structure.
You will need to research possible alternatives to the vendor you are
negotiating with, because like all contracts, content licenses are governed
primarily by market forces. Is the information you want available for
free from government web sites? Is there another vendor that provides
the same information but without any value adds? Think about what else
you can offer the vendor besides money. Do you like the product enough
to do a testimonial that could be used in the vendor's marketing efforts?
Would you be willing to assist the vendor develop enhancements to their
product? The most important tool you have for meeting your objectives
is bargaining power. The more you have, the more likely you will obtain
your ideal license.
There are many books that can help you learn more about effective negotiation techniques generally. Four recent works are Bargaining for Advantage: Negotiation Strategies for Reasonable People, by G. Richard Shell (Viking, 1999); Getting Past No: Negotiating Your Way from Confrontation to Cooperation by William Ury (Bantam, 1993); Negotiating and Influencing Skills: the Art of Creating and Claiming Value, by Brad McRae (Sage, 1998); and Winning 'em Over: A New Model for Managing in the Age of Persuasion, by Jay A. Conger, (Simon & Shuster, 1998).
For guidance with the many details of licensing, I would recommend getting a copy of Interpreting and Negotiating Licensing Agreements: A Guidebook for the Library, Research, and Teaching Professions by Arlene Bielefield and Lawrence Cheeseman, (Neal-Schuman, 1999). It has a 50-page chapter devoted exclusively to answering the question "What Do Licensing Agreements Really Mean?" It provides an invaluable series of charts that list the actual language of common clauses in licensing agreements including: Parties; Definitions; Grant; Licensor Obligations; Term and Renewal; Fees; Conditions of Use or Scope of License; Authorized Users; Limitation of Liability of Disclaimer; Termination; Governing Law; Alternative Dispute Resolution; Complete Agreement; Support or Documentation; Assignment; Waiver; Severability; and Confidentiality. It also lists less common clauses including: Content and Copyright; Monitoring Use; Privacy Protection; Indemnification or Hold Harmless; Government Use; Amendments; Force Majeure; and Signature Authority. Along side the text of these standard clauses is a plain English translation of what they actually mean, as well as possible pitfalls to watch out for.
As a final precaution, before signing off on a license agreement you should consult a checklist like the one provided in Appendix A of Interpreting and Negotiating Licensing Agreements. Another invaluable resource for making sure you have considered all aspects of your agreement is Jean O'Grady's "Checklist for the Negotiation of Internet Subscriptions," published in November 1999 in AALL Spectrum's CRIV Sheet. Lastly, you can see if the agreement you are about to enter into is in substantial compliance with the International Federation of Library Association's 32 Licensing Principles.
Librarians are very familiar with Samuel Johnson's aphorism: "Knowledge
is of two kinds. We know a subject ourselves, or we know where we can
find information upon it." It is clear that our libraries are going
to continue to evolve into gateways for digital information that we will
no longer own. To meet the growing needs of our users for high quality,
reliable, and current information, we will increasingly have to negotiate
licenses with content providers to provide access to these electronic
resources. We need to become effective negotiators so that we can use
our contract drafting skills to insure that we are able to provide our
users with the right information in the right format at the right price,
without giving up any of the rights we currently have under copyright
law. Fortunately for us, many librarians already "know this subject
themselves," while the rest of us "know where we can find information
upon it."