This session will offer a blueprint for crafting a clear picture of licensing priorities for your library and home institution and for developing an orderly negotiation process to ensure each agreement is properly reviewed and handled. Beginning with a brief overview of standard licensing terms for e-resources, we will discuss how to draw up your own checklists and draft legal provisions customized to successfully fulfill the information needs of your library’s users, while adhering to your institution’s local legal requirements. We will also identify practical methods for reviewing contracts to identify the issues in clauses that are most often challenging or problematic.

2. Agenda
☑ Overview of standard terms
☑ Communication and identifying stakeholders
☑ Determining Priorities
☑ Negotiation Strategies
☑ Determining Workflow
☑ Records Management
Source - https://memegenerator.net/img/instances/80375875.jpg

3. Source - https://media.giphy.com/media/b2eg2o9J7zzeo/giphy.gif
Part 1: Overview of Standard Terms
What are your greatest hits?
What to look out for?
What to ask for?
Source - https://kmch.com/wp-
content/uploads/2014/06/Kasem_Memorial-
602x381.png

4. NASIG CORE COMPETENCIES FOR ELECTRONIC RESOURCES
LIBRARIANS
Final Version
Approved and adopted by the NASIG Executive Board, July 22, 2013
Revised with minor edits by CEC, January 26, 2016 and January 2, 2019

5. What is a license agreement?
☑ A legally binding contract that is negotiated with a publisher or
vendor prior to acquiring or subscribing to an electronic collection or
service
☑ Includes information re: the product(s) or service(s) covered by the
contract, pricing, and/ or duration of the contract
☑ Includes the terms and conditions of use for library patrons
☑ Outlines the respective responsibilities of the provider and your
library
☑ Usually signed by someone with administrative oversight, e.g.
Director, Dean, CFO

7. Is SERU an option for your library?
References:
https://groups.niso.org/apps/group_public/download.php/8593/RP-7-2012_SERU.pdf
https://www.niso.org/standards-committees/seru/getting-started-seru-libraries
https://www.niso.org/standards-committees/seru/tips-working-your-campus-legal-counsel
https://www.niso.org/standards-committees/seru/librarians-questions-providers

8. Standard License Terms: Who’s Who
☑ Licensee – one to whom a license has been granted
☑ Licensor – one who grants a license
☑ Counsel – an attorney, lawyer
☑ Authorized signatory – party who officially represents the
licensee or licensor and has been granted the power to sign
documents, thereby authenticating/ giving them legal effect
☑ Authorized users – parties who are legally permitted access
to content or services as defined in the relevant contract

9. Standard License Terms: Copyright
Intellectual property guarantee: “Licensor warrants that it has the right to license the
rights granted under this Agreement to use the Licensed Materials.”
Look for restrictions on library rights granted under copyright law (Section 108).
Reference https://www.copyright.gov/title17/title17.pdf and
https://www.law.cornell.edu/uscode/text/17/108
** Also see U.S. Copyright Office Fair Use Index @ https://www.copyright.gov/fair-
use/
AALL Procurement Toolkit and Code of Best Practices for Licensing Electronic Resources @
https://www.aallnet.org/advocacy/vendor-relations/criv-tools/principles-practices-for-licensing-electronic-resources/
Copyright Law for Librarians and Educators: Creative Strategies & Practical Solutions (3rd Edition) by Kenneth D. Crews

10. Standard License Terms: Fair Use
“Nothing in this agreement shall be construed to limit the right of any Authorized
User to use the information provided through this Agreement in accordance with
Fair Use provisions of U.S. copyright law.” (from TRLN’s licensing guidelines)
See https://www.trln.org/files/2016/07/PrinciplesAndGuidelines.pdf
** Also see Stanford University Libraries Copyright & Fair Use @
https://fairuse.stanford.edu/

11. Standard License Terms: ILL
For ebooks, ejournals, database aggregators:
“Licensee may deliver a reasonable number of copies of Articles (including through use of ILLiad, Ariel or
a substantially similar interlibrary loan transmission software) to fulfill requests from non-commercial,
academic libraries provided, however, that such practice: (i) complies with Section 108 of the U.S.
Copyright Act and the guidelines developed by the National Commission on New Technological Uses of
Copyrighted Works (CONTU Guidelines); (ii) does not result in systematic reproduction of the Licensed
Products, any journal or issue of a journal, any Article, or any portion of the foregoing.”
For medical/ pharmacy:
Licensee and its Authorized Users may access and use the Licensed Products for scholarly and research
purposes and only as long as such practice: (i) complies with Section 108 of the U.S. Copyright Act and
the guidelines developed by the National Commission on New Technological Uses of Copyrighted Works
(CONTU Guidelines); (ii) does not result in systematic reproduction of the Licensed Products, any journal
or issue of a journal, any Article, or any portion of the foregoing.

12. Standard License Terms: Scholarly Sharing
“Authorized Users may transmit to a third party colleague, in paper or
electronically, reasonable amounts of the Licensed Materials for personal,
scholarly, educational, scientific, or research uses, but in no case for resale.”
(from Liblicense Model License)
See http://liblicense.crl.edu/licensing-information/model-license/

13. Standard License Terms:
Course Packs and E-Reserves
● Typically covered under Fair Use
● Focus on using “reasonable portion” of licensed content
● Know logistics behind these services on your campus
○ Who manages the e-reserves system on your campus? Who compiles course packs?
○ Are coursepacks print or digital? Does the license restrict either/both?
○ How do the systems work? Do they limit access to enrolled students?
○ What’s the best way to communicate special circumstances to staff managing these
processes?
Model language (California Digital Library model license):
Course packs: “Licensee and Authorized Users may use a reasonable portion of the Licensed Materials in
the preparation of Course Packs or other educational materials.”
E-reserves: “Licensee and Authorized Users may use a reasonable portion of the Licensed Materials for
use in connection with specific courses of instruction offered by [institution].”

14. Standard License Terms: Perpetual Access Rights
Yes: “Licensor hereby grants to the Licensee a nonexclusive, royalty-free, perpetual license to use any
Licensed Materials that were accessible during the term of this Agreement. Such use shall be in
accordance with the provisions of this Agreement, which provisions shall survive any termination of this
Agreement. Except in the case of termination for cause, Licensor shall provide the Licensee with access
to the Licensed Materials in a manner and form substantially equivalent to the means by which access is
provided under this Agreement.” (from NERL Model License)
No: “Upon expiration, non-renewal, or any termination of the license, all Licensee's rights to use the
Content shall cease.” (from UNC’s Docuseek license)

15. Standard License Terms: Access,
Maintenance & Performance

16. Standard License Terms: ADA compliance
● Important to understand organization’s priorities
● Provider must/shall make materials accessibility-compliant?
● ADA regulations vs. W3C guidelines
● VPATs
● Institution has right to modify or copy materials to make them accessible

17. Beware the “Forbidden” Clauses
☑ Arbitration
☑ Indemnification
☑ Library responsibility for user behavior
☑ Unreasonable termination rights
☑ Jurisdiction and governing law
☑ Complete disclaimers of warranty
☑ Unilateral modification of terms without advance notice
☑ Confidentiality and privacy

18. Managing “Forbidden” Clauses
Indemnification (NYS standard language):
“Subject to the availability of lawful appropriations and consistent with Section 8 of the State Court of Claims Act, The State University
of New York (SUNY) shall hold (vendor) harmless from and indemnify it for any final judgment of a court of competent jurisdiction to
the extent attributable to the negligence of SUNY or of its officers or employees when acting within the course and scope of their
employment.”

19. Exercise: Identifying Standard Terms
Optical Society of America agreement
Group 1:
- Who’s included in the authorized user definition?
- How are changes to the terms of the agreement handled?
Group 2:
- Is there a confidentiality clause?
- Is perpetual access / post-cancellation access available? If yes, how is it provided?
Group 3:
- Is ILL allowed?
- What’s the governing law?

20. Part 2: Communication and Stakeholders
Who are they?
● In the library
● On campus
● Outside your institution
Image: https://giphy.com/gifs/parks-and-recreation-
amy-poehler-rec-R55sOeBR22ogg

21. Communication is key!

22. Environmental Scan
Situational analysis - process of studying and analyzing the current and emerging
forces that exist within an organization's environment; incorporates assessment of
internal and external factors
Purpose - Help determine the future direction of the organization
Focus - Goals, Resources, Activities, Results, Impact
Process - Active exploration; Gather and triangulate diverse data elements and
viewpoints from primary & secondary sources to determine common issues/
priorities; Include quantitative & qualitative data

23. When do you contact library stakeholders?
● To figure out what you’re licensing
● Determining priority
● Determining scope of content
● General status updates
● Specific permissions and
restrictions:
○ No walk-ins
○ No perpetual access
○ No ILL
○ Weird access restrictions
● When things aren’t going well
Image: http://go.unc.edu/By26T

24. When do you contact on-campus stakeholders?
● Procurement Office - OGS-
approved contracts involved, e.g.
Westlaw
● University Counsel
● Other departments that share
responsibility for paying for and/ or
administration a particular resource

25. When do you contact external stakeholders?
● Potential consortial purchases or
subscriptions
● Timing of renewals and negotiations
● Feedback on consortial licensing terms
● For gut-checks and solidarity - building
up a network
Image: https://bit.ly/2EPNDSr

26. Group Exercise: Sweeping changes to statewide
consortium offerings
1. Pick a scenario
2. Split up - libraries vs. consortia
3. Review the scenario and discuss with your group
4. Report back

27. Part 3: Determining Priorities
● What does your library
care about?
● What does your campus
care about?
● (What does your state
care about?)
Image: https://bit.ly/316rRmK

28. Potential Library Priorities
● Authorized Users - who are
they?
● Fair Use disclaimer
● Restrictions on routine
teaching and research
activity: ILL, e-reserves, TDM
● Perpetual access and
archiving provisions
● Discovery issues: MARC
records provision, integration
with knowledgebase and
discovery systems
Image: https://bit.ly/2HPPB7b

29. Potential Campus Priorities
● Auto-renewal clause
● Warranty to license resource/ IP
rights
● Policing user behavior
● Accessibility
● Financial exigency clause
● Service/ performance issues:
modifying materials, extended
interrupted service
Image: http://go.unc.edu/By26T

30. State Legalese/ Other Campus Priorities
● Governing law and jurisdiction
● Limitation of liability
● Indemnification
● Arbitration
● Statute of limitations
● Confidentiality
● Check with university counsel or
purchasing: What’s the institution’s
position, and do they have
boilerplate language?
Image: https://bit.ly/2WakmHM

31. Start Categorizing
● Business and Access Terms​ = logistics
of how you’ll pay for things and how
they’ll work
● Required​ = hills on which you would die
● Strongly Preferred​ = you will grudgingly
compromise
● Unacceptable​ = more hills on which you
would die
● Contingencies/Special Situations– multi-
year deals, e-books, streaming media
● Language to watch for
Image: https://bit.ly/2HTf4wM

32. Activity: Categorize Standard Terms
Categories:
● Required​ = hills on which you would die
● Strongly Preferred​ = you will grudgingly compromise
● Unacceptable​ = more hills on which you would die
Categorize this!
1. Governing law = your home state
2. Library/institution retains fair use rights
3. Provider asserts that licensing content to you will not infringe on anyone else’s copyright
4. Vendor will notify you of any changes it makes to the terms & conditions.
5. Changes the vendor/provider makes to the terms & conditions are effective as soon as the institution
is notified of the updated language.
6. Authorized users are all students, staff, faculty, and walk-ins.

33. Counting down your top 100 favorite clauses!

34. Part 4: Negotiations
✔ What are you negotiating for?
- Purchasing perpetual access or leasing content?
- Content (Title/ Product lists and details)
- Pricing discounts
- Annual multi-year agreement?
✔ What if the vendor won’t modify a necessary term? Or negotiate the
license terms at all?
✔ Under what conditions are you willing to make exceptions?
✔ Notifying/ informing stakeholders of status updates

35. ☑ Many people are uncomfortable saying “no” unless they feel in control of the
situation; Using “no” can help you flip the script to get people to feel
comfortable about sharing what they really want
☑ Develop your “Late Night DJ Voice”
☑ Recommended resources
Never Split the Difference: Negotiating As If Your Life Depended On It by Chris Voss with Tahl Raz
Licensing Digital Content: A Practical Guide for Librarians (3rd Ed.) by Lesley Allen Harris
Guide to Streaming Video Acquisitions, Eric Hartnett (editor)
Negotiations: Honing Skills
See https://www.youtube.com/user/NegotiationCEO/featured

36. Negotiation Homework
● What’s ideal? Ask for this first!
○ Example: governing law in your home state vs. remaining silent
● What’s an acceptable fall-back position?
● Are there any deal-breakers where you have wiggle room or mitigating
language you can supply to offset the language in the agreement?
○ Example: Indemnification - strike or “To the extent permitted by the NC Tort Claims Act, we will
indemnify the vendor…”
● What’s your process for handling deal-breakers that you can’t negotiate
away? Who needs to be involved in that discussion?

37. Activity: Handling Exceptions
Situation 1: Pivotal resource in Classics has issued a new version of their license
terms and doesn’t accept revisions from anyone ever. It includes deal-breakers.
It’s a resource you’ve subscribed to for many years and is subscribed to by peer
institutions. What do you do?
Situation 2: You’re in a consortium who’s working with a major publisher who’s
being unreasonable about licensing terms related to scholarly faculty activities
(e.g. publishers automatically retaining copyright and refusing to allow campus
authors to deposit pre-prints in the campus’s IRs). Four out of the six participating
libraries in the deal have an open access mandate on their campuses. What do
you do?

38. Part 5: Workflows
● Track handoffs
● Understand pieces
and the whole
● Load-balancing
● Identifying and
addressing
bottlenecks
Image: https://bit.ly/2JTk0nf

39. Workflow: Charts

40. Workflow: Matrix

41. Workflow: Checklist

42. PMP Tools
☑ Asana
☑ Microsoft
☑ Planner
☑ Trello

43. Planner

44. Part 6: Records Management
Image: https://bit.ly/2WixKi5
● File-naming
conventions
● Tracking changes
and when to
resolve/accept?
● When to create a
new draft?
● Where do you
store drafts and
final copies?

45. NASIG CORE COMPETENCIES FOR ELECTRONIC RESOURCES
LIBRARIANS
Final Version
Approved and adopted by the NASIG Executive Board, July 22, 2013
Revised with minor edits by CEC, January 26, 2016 and January 2, 2019

46. Records Management: Version Control

47. Records: Storage & Accessibility
☑ Statutory requirements
☑ Develop a retention/ disposition
schedule for all documentation
created during the negotiations
process, including e-mail

48. E-Records: Storage & Accessibility

49. Retention Schedule
● Who needs to be
involved?
● Campus or state
requirements to uphold?
● Leverage campus-wide
systems and workflows?
● Paper files?
Image: https://bit.ly/2IepPIY

50. Wrap-up and Questions
☑ Overview of standard terms
☑ Communication and identifying
stakeholders
☑ Determining Priorities
☑ Negotiation Strategies
☑ Determining Workflow
☑ Records Management
Image: https://bit.ly/2IdffBY