LITA PreConference: Contracting for Content in a Digital World

LITA Preconference Friday, June 23, 8:30 am – 2:30 pm
Contracting for Content in a Digital World

A panel of experts discussed the forces and interests on the national and international scene that are shaping the new terms libraries, publishers, aggregators and search engines are negotiating in contracts and licenses today. 

Sybil Boutilier, Manager of Contract Administration for San Francisco Public Library, the program coordinater and moderater welcomed the participants and introduced the session.

Table of Contents: 5 Speakers

  1. Ann Okerson
  2. Helen L. Wilbur
  3. David Ferriero
  4. Miriam McIntire Nisbet
  5. Brian Green

Ann Okerson

First speaker: Ann Okerson, Assoc. Univ. Lib. for Collections and International Programs at Yale Univ. and primary force behind the LIBLICENSE web site (http://www.library.yale.edu/~llicense/) and moderator of the LIBLICENSE-L Mailing List (http://www.library.yale.edu/~llicense/mailing-list.shtml). 

In preparing this talk, she’s been thinking of taglines from the 60’s, because maybe those were the days of misremembered youth. “You’ve come a long way, baby.” “What a strange trip it’s been,” a line from the Grateful Dead song, “Truckin” 

Ready to look ahead. There are many tools to work with, model licenses, workshops, etc. So what do we worry about today? Here’s a short list of 5 topics on her library and consortium’s plate: 

  1. Long term preservation and access 
  2. The future of the “big deal” especially for journals 
  3. What to do when the tables turn and libraries team up with vendors 
  4. Bringing Asimov to the library: What happens when the reader is a robot? 
  5. Dawning of the Age of Aquarius, what possibilities does Open Access offer us?


Urgent action to preserve scholarly journals document released this year.

Getting to a more confident space than we are now is important.

LOCKSS distributes the task thru local caching.
PORTICO provides it thru a 3rd party vendor.

Licensing language runs well ahead of technological solutions.

Have added language to the model license to handle preservation (PORTICO and LOCKSS)..

The model license is a fluid entity.

The Big Deal

The big deal: is it an offer we can or can’t refuse?

You pay what you’ve been paying all along and you get more, or all of a publisher’s content. One transaction, no haggling over individual titles, etc.

Caution: if publishers like it, there must be something wrong with it.

Management of individual titles is reduced or eroded.

At Yale did case study of an STM publisher. List price = $750K but price for just the titles the library really wants is $500K; Yale’s cost has only been $350K because of price caps they’ve negotiated. Were surprised that they were actually saving money on this “big deal.”

That doesn’t mean it works the same for other libraries or schools.

Turning the Tables

We have met the enemy and is he us? Or are we him?

Amazon is approaching libraries with invitations to become publishers and suppliers to Amazon. Amazon is very willing to be the print on demand supplier if we have things to digitize.

Cornell and Michigan have deals of this sort with Amazon and other libraries may also.

We (libraries) become publishers, because we are selling information, and may want to get a good price.

Peter Kaufman: “Marketing culture in the digital age”  (http://www.intelligenttelevision.com/MarketingCultureinDigitalAge.pdf) did a study of this emerging market.

We need licenses/contracts for this side of the business. Some will think we ought to provide these services for free, and not charge for them.

Robot: Put down that book!

Cost of most digital content is at least indirectly correlated to size of population served or use, or both.

What happens when a researcher decides to put a robot or spider to work reading material. How do we deal with text or data mining of materials?

Okerson referred to a recent discussion on Liblicense-L.
Yes, this will complicate licensing.
The load on servers could be considerable.

Cliff Lynch has noted that this kind of machine reading may cause the ultimate melt-down of copyright as we know it today.

Data mining looks like data stealing from the vendors’ point of view. Is it fair use? Probably not.

The Age of Aquarius: Open Access

The question as she sees it: How can we make the fruits of scholarly research as free and widely distributed as possible? There are no agreements on how to achieve this goal. Here is a taxonomy of 4 models for open access:

1 Self-archiving solution; done by a local institution. Costs of doing it.

2 New business approach; new business models; reallocating costs; ask authors to pay with special deals, reduced authors fees if your library subscribes. There will be winners and losers. Small institutions might do better than large ones.

3 Government agencies require all government funded research to be made available freely through some method or other.

4 From each according to his abilities model; large community of publishers is working to make journals free or for minimal costs to developing countries.

Will we be licensing open access materials? She suspects we will since at her institution they are starting to do so already.

Someone asked what’s the difference between licensing for our digital content and the previous massive microfilming projects of previous decades? Simple answer: it’s similar but in other ways it’s different.

Regarding shrink wrap: at Yale, they have a standard form letter they send back to those vendors, stating a counter set of terms posted at a URL which states the terms under which they intend to use it. Never get a response from any of these.

Helen Wilbur

The second speaker was Helen Wilbur, Vice President of Consortia and Major Accounts, Thomson Gale.

Her job involves negotiating Thomson Gale’s largest contracts. She took the Harvard negotiating seminar which helped her a lot.

The most important thing is understanding your negotiating partner’s position, even if you don’t like it. But you MUST understand it.

First Topic: Challenges:

  •  Everyone’s an author 
  •  Everyone’s a publisher
  •  Add and prove value in a commoditized world
  •  No permanent friends, no permanent enemies

Second topic: What are our goals?

How are the goals of publishers similar and dissimilar from libraries?

Some are similar to those of libraries:

  •  Create products and services that our customers want
  •  Provide as much full text as possible
  •  Meet subject needs of customers
  •  Add and prove value in a commoditized world

Others are dissimilar: 

  •  Maintain protection for intellectual property
  •  Control distribution channels
  •  Make money

Thomson Gale does not support exclusive relationships with periodical publishers, because the excessive costs trickle down to the customers and requires customers to purchase duplicative databases. Goal: maximize active titles with no embargoes.

Digital collections and archives require a different model, which does include exclusives. They look carefully at what other vendors are doing, and avoid what others are already doing. Also, you’re purchasing the content, so a contract is required.

What does Ken Lay have to do with libraries?

  •  Sarbanes Oxley law (from Congress after Enron)
  •  New accounting regulations that Gale has to deal with.
  •  Protects consumers
  •  Makes contracting more rigorous for publicly traded companies

For example when Gale sells a product, by law they have to ship you something, something physical; a lot of sites don’t want to accept it.

When looking at vendor contracts/licenses, here’s Wilbur’s list of things that are standard provisions, and not worth worrying about, followed by the list of things you should take a good hard look at.

No heartburn list:

  •  Withdrawal of content
  •  Warranties
  •  Governing law
  •  Indemnification

Can retain right to cancel within 30 days notice if content becomes less valuable because of withdrawal of material.

Governing law: they HAVE to use Michigan law. If this is a problem, they generally just take the clause out all together, and let the courts decide, if it comes to that.

Think twice list: the things you should really care about:

  •  Authorized users
    1.  Alumni
    2.  Virtual reference
  •  Perpetual Access
    1.  License for use vs. contract
    2.  Dark archives
  •  Use restrictions
    1.  Coursepacks
    2.  Fair use and copyright
    3.  Public domain and contract law
  •  Managing the license
    1.  Deliverables

If it’s NOT in the contract, it doesn’t exist. Are you getting the deliverables you want? You asked for x days of training. Did you get that many?

Why does content get withdrawn? They have what they call “evergreen” contracts that renew automatically unless someone actively stops it.

Virtual reference is a very complicated issue; if you’re contracting with another entity to provide their online reference, use of a database for that purpose may not be covered by your license.

Simple Rules for Getting the Most out of Negotiating

  • Clarify your objectives
    1.  Understand the offer at hand
    2.  Set your priorities
    3.  What can you trade, where can you compromise?
  •  Understand what the other party wants
    1.  It’s not always about the money
  •  Focus on the issues
    1.  Compromise and creativity
  •  Niceness counts
    1.  Even hostage negotiators are pleasant

What you can do

  •  Transparent process
  •  Be clear about your goals
  •  Professional courtesy and respect
  •  No deal, no harm, no foul
  •  Contract maintenance and compliance


David Ferriero

The third speaker was David Ferriero, the Andrew W. Mellon Director and Chief Executive of the Research Libraries at the New York Public Library reported on NYPL’s deal with Google, and on the Google book scanning project in general.

NYPL has an agreement with Google to digitize carefully selected public domain materials. NYPL trustees are very conservative; getting them to agree was tricky, and that’s why they are ONLY doing public domain materials. All the major publishers in the US have their headquarters located within a few blocks of the main branch. These are their neighbors, their patrons; they can’t afford to alienate them.

NYPL had already been involved in digitization, including the Schomberg “In Motion” collection http://www.inmotionaame.org/.

Being at the table was a big part of the decision to participate; they wanted to be able to influence the project. They meet as a group with Google staff and the other partners twice a year.

There are three cultures at Google: 1) the techies: creative, bright, not socially savvy, like the ones he worked with for 30 years at MIT; 2) the marketing PR folks; 3) the lawyers.

Google has learned a lot along the way from the librarians: long term sustainability, preservation; metadata.

The one that frosted me, said Ferriero, was their “ownership” of the search algorithm, as though libraries had never done that!

Ferriero summarized the number of volumes from each institution that are slated for digitization.

The publisher lawsuits, we know about.

NYPL thinks that they have enough public domain material to keep Google busy until the legal battles are completed. The lawsuits were filed in NY not CA because the courts are much more favorable to publishers in NY.

A transcript of the “Google smackdown” was included in the preconference packets. Actually, this was a “Live from the NYPL” program, co-presented with Wired Magazine, titled “THE BATTLE OVER BOOKS: Authors & Publishers Take on the Google Print Library Project.” Participants included Chris Anderson, Wired Magazine, as moderator; Allan Adler, Association of American Publishers; David Drummond, Google; Paul LeClerc & David Ferriero, The New York Public Library; Lawrence Lessig, Stanford Law School; Nick Taylor, The Authors Guild

A PDF version of the transcript is available here: http://www.nypl.org/research/calendar/imagesprog/google111705.pdf and you can actually view the original event as a QuickTime file on the NYPL web site: http://www.nypl.org/research/chss/pep/pepdesc.cfm?id=1661.

Also included in the packets was the University of Michigan contract with Google, made available via a public information request. The agreement is available here: http://www.lib.umich.edu/mdp/umgooglecooperativeagreement.html.

Said Ferriero, “I can’t tell you this is the standard agreement for private institutions, but . . . “ and he strongly implied that it is just that.

Google is very private about their scanning operations; we’re not allowed to take pictures; they developed their own equipment, their own software for the OCR, etc.

There are preservation/conservation folks at the libraries who have developed guidelines to educate the Google folks about brittle paper, similar issues; how stuff is handled physically.

Everyone seems to think there is a lot of money involved for the participating libraries; this is simply NOT TRUE. Google pays limited costs for retrieving items, reshelving, etc.

According to the terms of the agreement, the data cannot be crawled or harvested by any other search engine; no downloading or redistribution is allowed. The partners and a wider community of research libraries can share the content.

Microsoft is now getting into this space; scanning 100,000 volumes at the British Library; MSN’s terms are much more open, allowing wider use of the content; maybe limited access for a limited period of 5-6 years, but after that, wide open. This is good, because it’s forcing Google to consider the competition.

Question: Is Google including just published materials? Answer: yes, for now. No manuscripts or music scores, etc.

Someone raised the issue of ad revenues. Ferriero stated that there is no advertising revenue stream back to the libraries.

Looking at a Google Book Search item, it’s hard to even tell where the material came from unless you’re good at reading library property stamps.

Libraries have been able to improve the quality of the product, i.e. the scanning, by working with Google.

Miriam McIntire Nisbet

By this time in the day, I was tiring, and my handheld was running low on battery power, so my notes from the last two speakers are severely limited.

Miriam McIntire Nesbit, ALA Legislative Counsel, works on copyright and intellectual property issues raised by the digital information environment. According to her bio as printed in the preconference packet, she also provides advice on law and policy concerning access to government information and privacy and works closely with ALA’s Office for Information Technology Policy.

Miriam Nesbit spoke about the convergence of law and copyright in the digital context.

She provided copies of promotional materials which were included in the packets. These included a “Stop Before You Click” bookmark and a brochure which lists “12 Principles for Fair Commerce in Software and Other Digital Products.”

She also provided a copy of ALA’s “2006 Copyright Agenda,” a copy of which can always be found on the front page of the ALA copyright web site: www.ala.org/copyright.

Lending books is based on the “first sale” provisions of copyright law. Although she stated she wouldn’t be covering copyright basics today, they are important to understand.

Be wary of terms in contracts that override or reduce your rights under copyright law. UCITA was especially egregious.

The moderator, Sybil Boutilier, mentioned that San Francisco Public dealt with particularly difficult vendor, for which the license took a long time to negotiate, then later, the vendor put up a click through license for individual patrons to accept before they could access the product. The library actually took the product down until this issue was resolved.

Brian Green

The final speaker was Brian Green, director of EDItEUR in the UK (http://www.editeur.org/) who provided an overview of EDItEUR activities particularly as they relate to libraries. He mentioned, among other things, the Report of the Digital Library Federation’s Electronic Resource Management Initiative, available online at http://www.diglib.org/pubs/dlfermi0408/.

His presentation slides (along with others) are supposed to be made available later, but there is no sign of them on the LITA site, as yet.