Last summer, I e-mailed my Canadian library colleagues about what contract clauses they edited or asked to be changed when they were negotiating electronic content subscriptions from legal publishers. A number of folks responded, but none of them wanted attribution for the clauses they shared. In any event, one thing led to another and I ended up writing an article for Canadian Law Library Review, the house magazine for the Canadian Association of Law Libraries. Here it is.
Unfortunately, Canadian Law Library Review is behind a pay wall but, since authors retain copyright in their work, here is the full text of my article.
Get the Electronic Licence You Want
By David Whelan
Electronic licensing is an integral part of modern law library collection development. The reality is that we cannot provide the latest primary and secondary legal information without access to fee-based databases. This can be challenging, since legal publishing is a small market and there are fewer choices when compared to academic and public information resources. Whether you are negotiating for the first time or coming back to the table with long term partners, you may feel as though you have limited options. You should not overlook your opportunity to use negotiations as a way to create options and tailor your licence agreement to your needs.
There are many resources available to get you in the right negotiation mindset, whether it’s guiding principles for electronic licenses[i], agreements on service levels and standards[ii], or practical advice[iii]. These can get you prepared for sitting down with your publisher colleague.
Knowledge is Power
One challenge that is very real is balancing the relationship with your account representative with your need to represent your organization. Kara Phillips does a great job of discussing how to get past trying to be a hard nose or a push over by eliminating the personal aspects from the contract discussions.[iv] The relationship is important, but separate it from your negotiations.
Take a look at your negotiating position in advance of meeting with your colleague. What is the value of the licensed information to your organization and to you? Is it being used? What have your researchers been able to accomplish due to access that they couldn’t have otherwise? What are your alternatives? Do you have a dollar amount that represents the value?
Similarly, try to assess what your colleague values from your organization. Is it just the dollars? That can be powerful but may make them less interested in being creative unless you’re a substantial customer. It is important to look past the unsubstantiated costs that publishers may offer to show the value of their service: find a case, $20, browse to a case, $100, etc. These costs might have made sense when people regularly paid those amounts, but not when they are used to justify increased costs on a flat rate, “all you can eat” subscription. What about your organization’s reputation or size? Is there an intangible benefit to your publisher if they can let similar potential customers know that you are licensing the publisher’s content?
Finally, and perhaps most important, analyze whether one of your options is to walk away without a licence. Until recently, law libraries licensed at least two major legal publisher databases but times are changing. Availability of free primary law and low usage of fee-based secondary content can mean you are paying twice for the primary law and getting low return on investment for secondary content, which you may still be duplicating in print. If you can do so, be prepared to compare and select one major legal research provider. Use less expensive alternatives from smaller publishers, including credit card-based pay-as-you-go research tools instead of committing to a licence that may receive little use.
Set in Concrete
The core of most legal publisher contracts is boilerplate. It is an extensive contract that may seem impenetrable but will be the basis of whatever agreement you sign. It is intended to handle all eventualities and your counterpart from the publisher is unlikely to have had anything to do with creating it. Give them a break if something clearly does not fit your expectations.
Contracts usually benefit the people who write them, so you should review this boilerplate for anything that you cannot live with or that is incorrect given your organization or law library’s circumstances. They could be small things: does employee include contractors? If you are a private law firm, do you have a “campus” like an academic library? Just like the cost and content terms, you can change elements of the boilerplate terms and conditions. It may be more difficult, though, because it benefits the publisher to have as similar a contract across all of its customers and each change draws away from that standardization.
This part of the contract may also spell out terms and conditions related to content that the legal publisher is aggregating from other publishers, as a reseller. You should be aware of what content can be added or removed and whether you are given notice about changes. You may want to ensure that any material content changes (and spell out what that means) yield a discount on your licence cost.
Take LexisNexis Canada’s limitation on deep linking to Quicklaw in its terms and conditions:
Web sites may NOT link to any portion of the Quicklaw web pages … without prior written consent from Quicklaw Inc.[v]
You may want to deep link from your organization’s intranet and will need to either get the prior written consent or cut out this limitation. Since LexisNexis Canada provides deep linking tools, it would seem a missed opportunity to avoid using the feature. Just because a publisher wants to be able to control access does not mean that they do not want to allow access!
You may find limitations on what you can print, who you can share it with, and what you can store for later use. Some contracts will specify a 90 day limitation on storing content electronically or may limit the types of devices you can store it on. Most of these restrictions appear intended to block massive downloads and storage of publisher content, where subscribers create a local, shadow copy of the content. If you think these limitations will hinder your ability to provide service, identify what you need and ask for changes.
Ready? Set? Go!
Once you have a sense of what your negotiation strength is, you may or may not feel very confident about your ability to get the licence you want. You cannot ignore that some people and organizations have more leverage than others. What we all share, however, is the ability to ask for what we need to provide effective legal research services.
Ask. Go ahead. It may feel like a bit of a risk but it isn’t. What have you got to lose? This is where the relationship part of the environment comes into play. After having reviewed the contract terms initially offered by your publisher counterpart, start the conversation. Identify where you need to make additions or deletions and ask for them.
You should also look beyond the terms that your counterpart provides you. For example, some legal publishers sell specific sets of content, and they cannot sell anything less than those prescribed slices. You may not want exactly what they are offering, though, so ask for the content that you do want and see if they will customize their offering to meet your needs. The future of successful legal publishers lies in their ability to customize electronic offerings to suit you, not on your purchasing the content or quantity they want to sell. Customized content is common in the United States and it is starting to become available in Canada. It may become more common if more librarians ask for it.
Another example involves users. Your publisher might want to sell a licence that covers all of your organization. But if you only want it for 2 or 3 reference librarians, then ask for pricing and licensing just for “behind the desk” access. Many publishers will provide specialized licenses available to a discrete group of users, not based on the number of people in your entire organization. You may able to justify the value of librarian-only access, and become a successful sale, where you could not justify an organization-wide resource.
You will need to be able to speak to why the change needs to be made and your counterpart should be able to explain why it cannot change, if the answer is no. If the legal publisher has a take it or leave it position, which is rare because this is business, you may need to leave it. More likely, like in any relationship, there will be give and take so that you can both get to an acceptable conclusion or, at the worst, depart amicably to try again sometime in the future.
It is fine to understand what you should do in a negotiation or licence review but entirely another thing to see it. Here are some contractual clauses that you might want to compare to what is provided to you by your publisher or written by your own legal counsel. They are examples of things that other Canadian law libraries have changed in their own contracts or philosophies they have followed in negotiating contracts.
Number of Users
Why pay for access by people who won’t be using the database? This is a perpetual problem in licensing legal research databases but you should identify just how many concurrent users you need and try to limit the contract to cover that group. In publicly accessible libraries, basing your licence on a specific number of terminals or users is an artificial limitation. If you have added wireless access as many libraries have, consider altering your user clause so that it covers the physical space like a site licence. This enables access by any number of concurrent users from within that space. Your publisher may balk at the change, but they will still have overall usage metrics for your account.
Law firms may experience growth at any time of year, adding lawyers or support staff that might require access to your online content. You want to be able to enable growth in your content without (a) incurring upfront costs for that cost by buying access in anticipation of possible growth and (b) without enabling a complete renegotiation of the licence in mid-term. The following clause was eliminated from a publisher contract that created this limitation.
During the Term, [Client] may be issued up to [number] [name of electronic database] passwords. All users must have a unique password and may not share the password. In the event [Client] requires additional passwords during the licence Term, [Client] agrees to renegotiate this contract.
You do not need a clause to enable this flexibility. If you add users during the licence term, most publishers will be happy to add them. If you want a bit more control, you might add a clause like the following:
During the Term, [Client] may add new users to this licence for [fixed amount per user] without requiring renegotiation of the contract.
Usage Level Modification
This is a bit more unusual circumstance but imagine that you are in a multi-location library: firm offices in multiple cities, public law library with more than one branch. You may go from individual locations negotiating contracts to centrally negotiating a contract. Or you may have certain offices cancel their own subscriptions to a service, knowing that they can access the same content from other internal or external resources. This was included in a contract to provide the legal publisher with a degree of control in case the cancellation actually cloaked a shifting of significant usage. In the end, as was anticipated, there was no significant usage increase after the cancellation and the clause was not invoked.
Pricing is based on historic usage levels. Given the decision of [other units within Client’s organization] not to subscribe to [Publisher]’s services, [Publisher] retains the right to monitor access to the Licensed products. If access by users during any calendar quarter during the term increases at least 25% above the usage levels in the previous year, then [Publisher] may give notice to [Client] that [Publisher] wishes to renegotiate the price for the remainder of the Term after the relevant calendar quarter, to reflect the increased usage. If [Publisher] and [Client] have not mutually agreed to an increased price within 15 days after the giving of notice by [Publisher], then [Publisher] may terminate this Agreement upon 15 days further written notice to [Client].
Document Delivery / Cost Recovery
There’s no such thing as a free lunch. Some law firms are rolling legal research costs into overhead, so cost recovery is a significant internal issue. If you are in a publicly accessible library or an organization where you charge for document delivery, you may want to ensure that you can do so. Legal publishers are wary of any service that could cause a potential client to prefer your document delivery service to their own subscription. You will probably need to clarify what or how much you might be distributing, and you should expect that the legal publisher may attach a value to that cost recovery.
The [Client] shall not charge a fee to access or use the Product and shall not use the Product solely in a computer or research service for a fee, or as part of a fee‑for‑service research service, copy service or document delivery service. The Subscriber may, as part of the Subscriber’s normal practice for its existing clients, charge a disbursement fee for materials gathered from the service in the course of research.
This clause was modified because the law library provided document delivery service to clients, not just internal staff or lawyers of the organization. It is particularly useful in broadening research support from publicly accessible libraries.
The [Publisher] licence agreement is modified only to the extent that [Client] is granted the right during the Term of this Agreement to print from the Data in the Licensed Products in the [Publisher]’s databases in accordance with specific search requests for such excerpts from or on behalf of [Patrons] who are authorized to use [Client]’s resources, and to send those excerpts by mail, electronic facsimile, or e-mail delivery to such patrons.
Some other copyright limitations may set an arbitrary number of copies (3 cases) or a percentage of content (not more than 25% of a chapter). Try to avoid using these limitations. You should be able to (for the time being) rely on fair use and fair dealing for document delivery. If your legal publisher requires some specific limitation, make it something that you can both count. Reasonable amount is not measurable; even 25% may not be sufficiently determinable. At the same time, any legal publisher that requires that kind of limitation must be able to (a) measure it and (b) share those measurements with you.
Monthly Utilization Reports
Law libraries are much more careful to watch what is being used. While no North American legal publisher is COUNTER-compliant and providing uniform statistics for comparison with other publishers, you should still ensure that you are receiving regular statistics to explain what is being used. Law firms will do this for cost recovery purposes but other law libraries should be able to show what their usage to understand future proposals of price increases. Ask for as much detail as you think you need, and get it in a format (like Microsoft Excel) that will enable you to analyze it.
[Publisher] will be required to provide [Client] with [a hard copy and] an electronic copy of the utilization reports for both the [licensed content] on a monthly basis in [specify application, like Microsoft Excel] format. The utilization report will provide details about usage by (a) sub-account, (b) password, (c) client or matter information, (d) database name, (e) amount of time used, (f) the type and (g) number of transactions, (h) the costs associated with each transaction, (i) the number of concurrent Users accessing the database at any given time, and any other related information. In addition, [Publisher] will provide [Client] with definitions of transaction types and other terms, and a price list to explain the cost structure for databases and related transactions.
Immediate Termination of Contract
This can be a useful clause to include in a contract. This enables you to disentangle yourself from a publisher who is no longer going to be able to meet its obligations to you.
[Client] may immediately terminate the Contract upon giving notice to [Publisher] where: (a) [Publisher] is adjudged bankrupt, makes a general assignment for the benefit of its creditors or a receiver is appointed on account of [Publisher]’s insolvency; (b) [Publisher] breaches any confidentiality or conflict of interest obligation set out in the Agreement; (c) [Publisher], prior to or after executing the Agreement, makes a material misrepresentation or omission or provides materially inaccurate information to [Client]; (d) [Publisher] undergoes a change in control which adversely affects [Publisher]’s ability to satisfy some or all of its obligations under the Contract; or [Publisher]’s acts or omissions constitute a substantial failure of performance; and the above rights of termination are in addition to all other rights of termination available at law, or events of termination by operation of law.
Termination for Non-Appropriation
If you have ever entered into a licence contract with some trepidation because budget cuts might arise, this is a clause to consider. Originally written into a government law library’s contract, it can be an important component of any law library’s licence. If your funding disappears mid year or in the middle of a multi-year contract, you may still have obligations to pay your entire licence cost. The publisher is not necessarily going to relieve you of the burden.[vii]
If this Contract extends into a Fiscal Year subsequent to its execution, continuation of the Contract is conditional upon an appropriation of moneys by the [Client] sufficient to satisfy payments due under the Contract. In the event that such moneys are not available as a result of non-appropriation for the Fiscal Year in which payment becomes due, the [Client] may terminate the Contract upon giving notice to the [Publisher]. Termination shall become effective on the date of the beginning of the first Fiscal Year for which funds have not been appropriated.
If you work in an environment where your organization will not indemnify the publisher for its own liability, you should eliminate any indemnity clauses.
All good things come to an end and your licence is no different. You can negotiate the notice period just like anything else in the contract. Your notice period is an endpoint, not a starting point. It assumes that you will have begun negotiating before the notice date because, if you might walk away from the legal publisher without a license, you will need to meet the notice obligation.
If you have a long notice period for termination, you may find yourself forced into a renewal or cancellation decision before you have your budget approvals or other internal information you need for good decision making. Shorten the notice period to as short as you are comfortable. Not only does this give you a longer horizon to see what is coming and plan for it, it gives you an opportunity to take the time to think about creative options if you are struggling getting to an acceptable licence agreement.
Electronic subscription negotiation is with us for the foreseeable future. It is covered extensively in library literature and will probably remain evergreen as long as librarians worry about their services and how to manage their resources effectively. Licenses change and needs change and librarians need to be able to ask for what they need from their publishers. The measure of success is not saving more money than your neighbor or coming down hard on your publisher, but getting a licence that you know represents a fair balance of what you and your counterpart value. Check with your colleagues to see what they have done. Most importantly, ask for you what you need. You might be pleasantly surprised at the licence you get.
[i] “Licensing Principles for Electronic Resources”, American Association of Law Libraries Special Committee on Licensing Principles for Electronic Resources, 2004. Online: American Association of Law Libraries <http://www.aallnet.org/committee/reports/LicensingPrinciplesElecResources.pdf>.
[ii] “Shared Electronic Resource Usage (SERU) Recommended Practices”, National Information Standards Organization, 2008. online: Niso.org <http://www.niso.org/publications/rp/RP-7-2008.pdf>.
[iii] Harris, Lesley Anne. “When the Negotiations Begin, Listen Carefully, Stay on Point,” Information Outlook, March 2007. Online: Findarticles.com <http://findarticles.com/p/articles/mi_m0FWE/is_3_11/ai_n18791182/>.
[vi] I posed a question to the CALL-L discussion list about what changes other libraries had made. A number of colleagues e-mailed me the following suggestions, tips, and contract amendments. Although they all asked not to be attributed for their contributions, I wanted to acknowledge the generosity of our nameless peers and clarify that a great deal of practical information in this article reflected the intellectual creativity of others! Publisher names have been removed since many of these will apply to any electronic subscription.
[vii] Craig, John. “Spokane County law library falls behind on bills”, Spokesman-Review, May 21, 2010, online: Spokesman-Review <http://www.spokesman.com/stories/2010/may/21/law-library-falls-behind-on-bills/>.