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Negotiation

About negotiation:

Licensing is negotiated with individual publishers/providers/agents and the terms can be different from publisher to publisher.

License agreements regulating the use of electronic resources govern the relationship between the licensee (the library or user of the content) and the licensor (publisher, vendor or aggregator of the content). In a typical situation, the licensor will present their standard license agreement to the licensee. This is just the first step in the license negotiation process. Because both parties will be bound by the terms therein, each party should review the license carefully and be prepared to negotiate in good faith to reach a satisfactory agreement. If the parties cannot agree on key issues in writing, the license should not be signed. The terms of the final agreement should be committed to writing and neither party should rely on verbal agreements or commitments.

In the area of licensing electronic resources, failure on the part of the licensee to read and understand the terms of the agreement may result in such unintended consequences as:

 

  • the loss of certain rights to uses of the resource that would otherwise be allowed under the law (for example, interlibrary loan, and other library and educational uses);
  • obligations to implement restrictions that are unduly burdensome or create legal risk for the institution;
  • sudden termination of the contract due to inappropriate use by a member of the user community;
  • unexpected cancellation or renewal notification requirements or automatic renewals and fee increases;
  • access restrictions that cannot be supported by your technical or administrative infrastructure

 

Given the obligations that a contract creates for an institution and the possible liability associated with not meeting those obligations, most institutions will delegate the authority to sign contracts to a specific office or officer within the institution. In many institutions, this signatory authority will reside in the purchasing department, legal counsel’s or vice president’s office, or the library director’s office. In some institutions, a library staff member may be granted authority for signing license agreements. Library staff will often be responsible for initial review and negotiation of the material terms of the license because they have the most knowledge of the user community and of the resource being acquired. Library staff involved in license negotiations should be well informed of the anticipated uses that are essential to their library’s user community (for example, interlibrary loan, downloading, or data mining).

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