SAGE's Carol Richman recently gave a presentation to ALPSP on contract negotions.

1. Contract Negotiations for Publishers WebEx Web Conferencing Technology Audio is being broadcast via one-way audio stream through your computer speakers. Please do not close the audio broadcast dialog box in the upper left corner during the presentation. If you are experiencing challenges with the audio broadcast, close the audio broadcast box and telephone in per these instructions: Click on the Request button to the right of your screen and the call in numbers will display. 2. Enter Event Number 3. Enter your attendee ID number assigned to you (displayed within the INFO Tab). If you have a problem finding your attendee ID number hit #.

2. Contract Negotiations for Publishers: How To Juggle the Various Types of Negotiations and Apply Tactical Tools This presentation does not constitute legal advice. © 2011 ALPSP/Copyright Clearance Center

3. Today’s Presenter Carol Richman Director of Licensing, SAGE carol.richman@sagepub.com

4. World’s expert on copyright licensing solutions Driving innovation, collaboration and creativity Part of an international network of reproduction rights organizations

5. World's largest trade association for scholarly and professional publishers Connects, trains, and informs the scholarly publishing community Speaks and advocates on behalf of the international community of not-for-profit publishers

6. Today’s Conversation Author Licenses Repository Agreements (Journals) Negotiating Tools Licensing to Aggregators and Other Third Parties Customer Licenses RFPs: designing what to include and how to take those details to the contract stage

7. Author Contracts Why Transfer Copyright? STM Publishing – standard in the industry; scientific integrity. Removes permissions burden from the author; publishers likely have better resources to handle this. Publishers have resources to pursue infringement claims on behalf of authors; other legal protections. Publishing with established publishers adds element of prestige vs. Self-publishing.

8. Author Contracts Author Rights A recent trend, borne from the open access movement and directly related to shift from paper to electronic. Previously, many publishers were quite restrictive relative to what authors were permitted to do with their content. Currently, trend has reversed – publishers granting more rights back to authors than ever before. End result is greater availability of content.

9. Author Contracts ACS Journal Publishing Agreement (JPA) is an example of this shift. JPA greatly expands author rights vs. prior form (Copyright Status Form); consistent with STM Publishers JPA highlights Authors can now use different versions of their manuscript Transfer of copyright in Supporting Information is now nonexclusive Clarifies behaviors expected of ACS authors

10. Author ContractsJPA Highlights Reuse of Figures, Tables, Artwork, and Extracts in Future Works Reuse in Teaching or In-House Training Presentation at Conferences Share with Colleagues Posting Submitted, Accepted, and Published Works on Websites and Repositories

11. Author ContractsJPA Highlights cont’d Author Warranties and Obligations Original work Nothing misleading or inaccurate All authors have been informed of submission of work Submitted exclusively to ACS Nothing is obscene, defamatory, libelous, etc. No infringement of confidentiality Permission obtained for non-original contained

12. Author ContractsLicense to Publish Some publishers don’t require transfer of copyright, instead they use a “License to Publish.” Effect is to allow authors to retain copyright to their work (the “ultimate” in author rights), while granting a license to the publisher to do certain things with the work. Example – AAAS for Science; contains some similar provisions to the ACS JPA (primarily in the area of author warranties and obligations).

13. Author Contracts Generally speaking, author contracts are not negotiable Certain allowances are automatically invoked, i.e., US Government works, Crown Copyright works From time-to-time, it may be necessary to negotiate certain terms Some allowances may be based on older agreements

14. Institutional Licensing & Contract Sales Negotiations Common Provisions Authorized Users Permitted Uses Prohibited Uses Indemnification Warranties Governing Law / Choice of Law

15. Institutional Licensing & Contract Sales Negotiations As compared with Author Contracts, generally, there is more room for negotiation. Business terms such as cost of product, billing/ invoicing/payment, product descriptions, etc., are left up to the sales people. Consortia typically more difficult to negotiate with as compared to individual subscribers. Difficulties can arise when dealing with foreign law, and even state law provisions.

16. Institutional Licensing & Contract Sales Negotiations Consortia typically consist of educational institutions as its members. Foreign examples on the national level include NESLI (UK universities), CONCERT (Taiwan universities), CALIS (P.R. China universities). US examples on state/regional levels include CDL (California Digital Library – universities in CA), CARLI (universities in Illinois). Pricing dependent on size of consortium or individual institution, and can vary country by country. Developing nations usually given discounts.

17. Repository Agreements Institutional Repository: an online locus for collecting, preserving, and disseminating – in digital form – the intellectual output of an institution, particularly a research institution (definition from Wikipedia) Commonly found at universities – might include research journal articles, theses and dissertations, and other documents Directly related to open access; goal is greater access to and availability of content (author rights) A way for an institution to collect content from its faculty, a form of self-archiving

18. Repository Agreements Many universities now have their own repositories, both in the US and worldwide. Some universities have drafted their own forms that faculty (authors) provide to publishers; these forms may be treated as addenda to publisher forms, or may be designed to replace publisher forms. In response, many publishers, especially in the STM arena, have amended or redrafted own forms to include author/institutional rights to deposit content into repositories. An example of this is the ACS JPA.

19. Licensing to Aggregators

20. Who are today’s content aggregators? Amazon Repositories Blio (Baker and Taylor) Kobo Kno EBSCO OVID Technologies ProQuest Google

21. How do publishers assess potential partners? Review business needs, goals, and future plans. Review and study partners business models. Build a partner plan to ensure continuity and sustainability. Negotiate a good contract!

22. How do you negotiate a good contract? Business needs and goals dictate what constitutes the best contract for your partnership with an aggregator. Terms: all terms in an agreement should be appropriate and to the point.

23. Negotiation Collaborative: negotiating for win-win Detached problem-solving where each party gains something of value Competitive: (zero-sum) negotiating for win-lose Substance (e.g., financial) is what matters; relationship unimportant Concession: negotiating for lose-win Avoidance, desperation, or not knowing what’s possible lead to loss

24. The Agreement/Contract Agreements with third parties (authors, vendors, contributors, institutions, etc.) should be drafted as “By and between [NAME OF COMPANY/ASSOCIATION ] and “party.” Describe Contracting Parties Accurately

26. Vendor shall be responsible for the following. . . .

27. Representations, Warranties & Indemnification Clauses Balanced representations and warranties: Each party shall represent and warrant that it owns the IP or has license to use the IP in the manner consistent with agreement.

28. Representations, Warranties & IndemnificationClauses Cont’d Example: (1) [COMPANY] represents and warrants that it either owns the copyrights or has the necessary licenses and permissions from the copyright owner to use the content in a manner consistent with this agreement. SAGE represents and warrants that the content, to the best of its knowledge, does not infringe on the legal rights of third parties, is not obscene, objectionable, etc.

29. Representations, Warranties & Indemnification Clauses Cont’d Example: (2) Vendor represents and warrants that it either owns the software and hardware or has received the necessary licenses and permissions from the copyright and patent owners to use the software and hardware in a manner consistent with the agreement. Vendor represents and warrants that software and hardware do not infringe on any third party rights, etc.

30. Important Business Terms Definitions Licensed Material Authorized Use of Licensed Material Authorized Users Commercial Use Fees Scope of Grant of License Proprietary Rights in Licensed Materials Restrictions Confidentiality Access & Use

31. Important Business TermsCont’d “Content” shall mean the electronic versions of journals published by SAGE in specified backfile years prior to 1999 as set forth on Exhibit 1 attached hereto and incorporated herein by reference. “Content” does not include any additional journals, publications, or other content not identified on Exhibit 1.

32. Important Business TermsCont’d “Purchase Agreement” shall mean the delivery of the Content in PDF format, or successor digital file format if the technology used for storage or access changes and/or the non-exclusive, non-transferable right to continuing functional online access and use of the Content via SAGE Journals Online (powered by HighWire Press or its successor hosting service as SAGE may designate in its sole discretion) subject to the terms and conditions set forth herein.

33. Important Business TermsCont’d “Intellectual Property Rights" shall mean patents, trademarks, trade names, design rights, copyright (including rights in computer software and moral rights),database rights, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world.

34. Important Business TermsCont’d Confidentiality Example of language to avoid: As used herein, “Confidential Information” means what one party (“recipient”) receives regarding the other party’s finances, business customers, sales, or that is otherwise treated by its owner in good faith as confidential and either conspicuously marked “confidential,” or words to that effect at disclosure, or is reasonably identified to the recipient in writing as “confidential” within 30 days after disclosure, or that recipient reasonably knows to be confidential. For purposes hereof, the terms and conditions of this Agreement shall be deemed Confidential.

35. Important Business TermsCont’d Confidentiality cont’dExample of language to try to use:As used herein, “Confidential Information” means information that one party (“recipient”) receives regarding the other party’s finances, business customers, sales and that is identified either orally or in writing as being confidential, or is reasonably identified to the recipient in writing as “confidential” within 30 days after disclosure. For purposes hereof, the terms and conditions of this Agreement shall be deemed Confidential.

36. Important Business TermsCont’d Term Prefer longer term that does not auto renew Downsides of auto renewal clause: It requires tracking. If you miss the date specified to terminate, then you are stuck with the agreement for another term. You miss the opportunity to renegotiate terms.

37. Important Business TermsCont’d Term cont’dExample of auto renewal clause: This Agreement will continue for a period of one (1) year from the Effective Date first stated above and will thereafter automatically renew for additional one (1) year periods, unless one party notifies the other at least thirty (30) days prior to the expiration of the term that it intends to terminate the agreement.

38. Important Business TermsCont’d Term cont’dExample of clause that does not renew: This Agreement is for a period of three (3) years from the Effective Date first stated above (the “Term”). Upon the mutual written agreement of the Parties prior to the expiration of the Term, the Agreement will continue for an additional one (1) year period. Benefit: Forces the party to think about the deal and if it works as originally negotiated.

39. Important Business TermsCont’d Termination for Convenience ClauseExample:Either party may terminate this Agreement without cause and for any reason upon providing at least ninety (90) prior written notice to the other party, or, in the event of a breach of a material term by the other party, by providing written notice of the exact nature of the breach and thirty (30) days from receipt of the written notice to cure such breach.

40. Request for Proposals

41. Request For Proposal (RFP) Preparing an RFP to meet your needs Often the first step toward a successful negotiation The role of consultants in the RFP and negotiation process Negotiating to and through the initial contract and contract renewals

42. RFP Examples Contract publishing Commercial publishers University presses Nonprofits Editorial and production services Copyediting Composition Print | digital

43. RFP Examples, Cont’d Sales and marketing Industry sales Content aggregators Institutional sales Licensing / buying technology Peer review systems Semantic tagging Data conversion

44. RFP Process Assess needs and gather relevant data Determine info needed Set reasonable timetable Identify recipients Prepare and distribute RFP

45. RFP Award Evaluate supplier proposals Respond to suppliers’ questions Compare proposals Prepare narrative, tables, and spreadsheets Discuss with client, identify remaining issues Questions, revised offers

46. RFP Award, Cont’d Arrange for site visits, presentations Set client expectations Moderate discussion following presentations Inform suppliers Provide feedback Negotiate agreement Review and comment Brainstorm solutions

47. RFP Award, Cont’d Monitor Progress Make sure the project is going according to plan and the contract

48. Resources For Author Contracts: ACS Journal Publishing Agreement (JPA) -- http://pubs.acs.org/page/copyright/journals/index.html Science Magazine License to Publish -- http://www.sciencemag.org/site/feature/contribinfo/prep/license.pdf

49. Resources, Cont’d For Institutional Licensing: ACS Multiple-Site/Consortium License -- http://pubs.acs.org/userimages/ContentEditor/1224170901223/multisite.pdf

50. Resources, Cont’d Repository Agreements: MIT Amendment (to be attached to publishers’ copyright form) -- http://info-libraries.mit.edu/scholarly/wp-content/uploads/mit-amendment-oa-policy-2009-new-font.pdf Stanford Amendment -- http://lane.stanford.edu/help/openaccess/8E07_Addendum_to_Agreement_(Licensing-Publishing).pdf.

51. Any Questions?

52. For More Information Isabel Czech, Executive Director ALPSP North America isabel.czech@alpsp.org 551-427-0790 Educational Services Copyright Clearance Center education@copyright.com 978-646-2608