Enhancing Access to Research Databases
Libraries of all sizes are struggling with the cost of maintaining electronic data base subscriptions. Costs have risen dramatically, and many libraries are in the position of dealing with a sole-source situation. Library staff charged negotiating data base licenses often have no frame of reference with regard to fair pricing, and often are not aware of all of their rights with regard to contract negotiations.
Goals included in the original initiative were: developing a statewide manifesto, identifying existing agreements and relationships in NYS, developing on demand pilots to study alternative access models, develop tools that assist libraries in vendor negotiations, explore the creation of a purchasing cooperative, and provide insight into the database provider industry.
In addition to local council directors John Hammond and Sheryl Knab, the list of members for the various task groups under the Enhancing Access to Research Databases initiative are:
Members of the Manifesto Task Group:
(Monroe 1 BOCES SLS)
| Michelle Young
Members of the Licensing Toolkit Task Group:
|Carol Ann Germain
(University at Albany)
Members of the Industry Analysis Task Group:
(Rochester Institute of Technology)
| Jen Freer
(Rochester Institute of Technology)
Members of the On-demand Journal Article & Ebooks Task Group:
(University at Buffalo)
(Cary Institute of Ecosystem Studies)
|Karin Wikoff, Chair
(Monroe Community College)
Members of the Library Purchasing Cooperative Task Group:
(Monroe 2 BOCES SLS)
(Suffolk Cooperative Library System)
(Brooklyn Public Library)
(Mid-York Library System)
(Suffolk Cooperative Library System)
The I2NY E-Resources Industry Analysis Task Group headed by Shirley Bower and Jen Freer of Rochester Institution of Technology were charged with studying industry pricing of electronic resources and if pricing reflects actual costs of publication and distribution plus reasonable profit.
For the purpose of reframing how libraries negotiate with vendors for electronic resources, one suggestion is for libraries to analyze and understand a vendor’s whole business. This would include reviewing available financials, operations and identifying and contacting existing customers. Included in the narrative is a description of a process that was used in examining selected vendors – both privately held and publicly held. This process could be used by libraries and applied to each vendor they do business with in order to influence vendor/library negotiations and potential contracts.
Article on Demand Task Group
The Article on Demand task group, a subset of the Enhancing Access to Research Databases work group of I2NY was tasked with investigating the feasibility of conducting an article on demand pilot/service in a consortial framework that would meet the needs of smaller and mid-size libraries and test economics between an on-demand service and the current subscription models that libraries are more accustom to paying for.
The white paper details the work the task group has performed over the last two years. Additionally, they have put out a call for volunteers to participate in a potential pilot. If you have any questions, don’t hesitate to contact Karin Wikoff, Amy Schuler, or myself. Contact information is included in the white paper.
E-Resources Licensing Manifesto
A key goal of Empire State Library Network’s Information Infrastructure initiative is to ensure affordable access to information needed for the effective support of research, economic development, teaching, and learning throughout New York State. Now is a critical time for libraries to join together in demanding a greater level of cooperation from vendors and publishers that strengthens information access services to all New Yorkers.
We encourage New York libraries and library consortia to support the following principles with regard to all purchased/leased content (in all formats), and agree to endorse and strive to conduct business with only those publishers and vendors who:
- Omit non-disclosure or confidentiality clauses from license agreements for all customers to enhance a library or consortia’s ability to make informed decisions concerning pricing and content.
- Provide flexible pricing and content that accommodate a variety of user groups and research needs.
- Support through licensing agreements educational exceptions or limitations to the exclusive rights of owners.
- Support through licensing agreements the legal concept of fair use in the electronic environment, including common library practices such as interlibrary loan and the inclusion of information in course packs and reserves.
- Allow the use of their data, without restriction, in any emerging technologies and tools that will enhance discoverability and usage.
- Provide standard usage statistics that are in compliance with the latest COUNTER Codes of Practice.
- Support the preservation and dissemination of research in institutional repositories and through other open access initiatives.
- Embrace new business models and are willing to partner with libraries to improve content, delivery, pricing, and access.
- Link pricing structure to suitable indices.
- Provide detailed information that ties product development with product pricing.
Developed by the ESLN I2NY Priority: Enhancing Access to Research Data Bases Work Group, Manifesto Task Group
February 12, 2014
If your library system, library, and/or college or university campus as a whole endorses this manifesto, please have your library director, library system director and/or administrator fill out this form!
New York Library Association (Jeremy Johannesen, Executive Director)
SUNY Council of Library Directors (Jenica Rogers, Chair)
Empire State Library Network (Kathy Miller, Chair), comprising these library councils who also endorsed it locally:
- Northern New York Library Network (John Hammond, Executive Director)
- Western NY Library Resources Council (Sheryl Knab, Executive Director)
New York State Higher Education Initiative (NYSHEI)
(Jason Kramer, Executive Director)
The Board of WNY/O ACRL
ENY/ACRL (Jane Kessler, President)
IDS Project (Mark Sullivan, Executive Director)
Connect NY, Inc. (Bart Harloe, Executive Director)
New York State University and College Campuses:
- Bard College
- Clarkson University (Anthony G. Collins, President)
- Ithaca College
- Utica College
- Vassar College
New York State University and College Libraries:
- Mount Saint Mary College Library (Barbara Whitney Petruzzelli, Director)
- SUNY, College of Environmental Science and Forestry, F. Franklin Moon Memorial Library (Stephen P. Weiter, Director)
Pi2 (Michelle L. Young, Chair), comprising the following libraries:
- Bard College, Stevenson Library (Jeffrey Katz, Director)
- Clarkson University, University Libraries (Michelle L. Young, Director)
- Hamilton College, Hamilton College Library (Dave Smallen, Director)
- Hofstra University, Joan & Donald E Axinn Library (Dr. Bernard Firestone, Director)
- Ithaca College, Ithaca College Library (Lisabeth Chabot, Director)
- Manhattanville College, Manhattanville College Library (Jeff Rosedale, Director)
- NYS Dept. of Health, Herbert W. Dickerman Library (Lawrence S. Sturman, Director)
- Rensselaer Polytechnic Institute, Rensselaer Libraries (Bob Mayo, Director)
- Sarah Lawrence College, SLC Esther Raushenbush Library (Sha Fagan, Director)
- Siena College, J Standish Library (Gary Thompson, Director)
- Skidmore College, Lucy Scribner Library (Ruth Copans, Director)
- St. Lawrence University, SLU Libraries (Michael Alzo, Director)
- The College of Saint Rose,Neil Hellman Library (Andrew Urbanek, Director)
- The Sage College, Sage Libraries (Lisa Brainard, Director)
- Utica College, Frank E. Gannett Library (Beverly Marcoline, Director)
- Vassar College, Vassar College Libraries (Sabrina Pape, Director)
I2NY Model for Database License Agreements
The I2NY Model for Database License Agreements was developed in 2014 to provide librarians and procurement officers with a descriptive starting point in the procurement of electronic resources; it attempts to establish baseline components of contracts regarding recurring database licensing issues such as indemnification, renewals, authorized users, privacy, and performance. It is not intended to serve as legal advice, but instead can be used before or during negotiations to assist negotiators by highlighting areas where particular scrutiny is merited. It is suggested that the I2NY Model for Database License Agreements be used in conjunction with various other model resources which are included in the document.
This I2NY Model represents a tool to provide librarians and partnering procurement officers with a descriptive starting point for contract negotiations in the procurement of electronic resources.
The I2NY Modelattempts to establish baseline components of contracts regarding recurring database licensing issues such as indemnification, renewals, authorized users, privacy, and performance.
It is suggested that this Model be used in conjunction with other resources such as the LIBLICENSE Standard Licensing Agreement, the National Electronic Site License Initiative, and various similar resources.
California Digital Library – Licensing Toolkit: http://www.cdlib.org/gateways/vendors/checklist.html
NorthEast Regional Library – NERL Model License: http://www.nerl.org/nerl-documents/nerl-model-license
Licensing Models.org : http://www.licensingmodels.org/
The licensor should be identified in institutional or corporate name with contact details and pseudonyms delineated. Other abbreviations/substitutions should be delineated or referred to in any accompanying appendix.
- Grant of license for defined content
Content to be accessed/used by the licensee and their authorized users via purchase of a license, subscription or lease should be described with sufficient detail and scope of rights for use (including locale and means of access), and regarding ownership of content and related copy and trademarks be established.
*All “click-throughs” should be superseded by a master agreement.
III. Term / Renewal
Contract effective dates should be indicated. Varying term date ranges may be considered.
Automatic renewal provisions are discouraged and triggering events for renewal are encouraged, i.e. it is advised to affirmatively agree to a renewal before a subsequent period.
- Fees and Payment
Payment amounts, cycles, methods, triggers, and additional fees that are negotiated should be delineated in the main body of an agreement or in an appendix.
Avoid pricing non-disclosure statements. Pricing changes should be avoided during the term of a contract and applied only at the start of a renewal period.
- Authorized users
List appropriate parties as per the regular business patterns at your institution. Include all faculty, staff, and students, those of remote and member institutions and delineated on-location visitors/contractors.
*Pursue, whenever possible, a definition of “partial FTE” as representing the user groups identified; i.e. those specific sub-populations within the FTE which would be the most frequent and typical users of the defined content, thus aiming for a cost reduction goal. The general strategy with scoping this area follows a simple rule: “less is more and broader is better.”
- Authorized uses
Within the broadest scope allowed for fair use as cited under U.S. and applicable international copyright laws, typical uses, delivery and subsequent handling of the accessed content for the purposes of research, education, inter-library sharing of resources, and other non-commercial uses should be permitted.
Listing of specific details in this section is constraining and should be avoided. Limitations on access should be minimal if not eliminated. Inter-Library Loan restrictions by format should be avoided.
VII. Technical controls/access /authentication
An agreement should delineate the various technical methods allowed in the provision of access by authorized users. These methods might be in place or could be developed during the term of the agreement.
Technical controls to access including authentication should not place an un-due burden on the Licensee, (e.g. such as not needing to manage users accounts set up by the users themselves). Controls (whether possible or not) should not interrupt the consideration of targeted sub-populations to define subscription user groups.
VIII. Archival/Back-up/perpetual access
When permanent use of a resource has been licensed, the license agreement should allow the licensee to copy data for the purposes of preservation and/or allow the creation of a usable archival copy. The license agreement should clearly state who has archival (back-up) responsibility for the resource (e.g. the Licensor, the Licensee or a third party) and the access rights of the Licensee to the archives. Licensor should provide copy at no additional cost given cessation of business. The agreement should include a nonexclusive, royalty-free perpetual license to use any licensed materials that were accessible during the term of the agreement.
Arrangements must be made for perpetual access to the platform (or to pursue/employ an effective substitute in the event of failure or dissolution), for the delivery of the licensed content. (Unpack/use data. Define future 3rd party provider/repository such as Portico or LOCKSS-n-CLOCKSS use.)
- Intellectual property rights
A license agreement should recognize the intellectual property rights of both the licensee and the licensor. Authors whose works are accepted for publication by the Licensor shall retain the non-exclusive, irrevocable, worldwide, royalty-free right to use their content for scholarly and educational purposes including depositing in a repository or archive.
The limitations on warranties should include an exception for claims involving intellectual property infringement. Without this exception, an intellectual property indemnity may be worthless.
Licensees should strike provisions relating to non-infringement and title of licensor’s warranty disclaimer.
- Notice of Copyright infringements (License Performance Obligations)
A license agreement should not hold the licensee liable for unauthorized uses of the licensed resource, as long as the licensee has implemented reasonable and appropriate methods to notify its users of restrictions. The licensee should make reasonable efforts to enforce the terms of access. The agreement should require the licensor to give the licensee notice of violations and a reasonable time to take corrective action.
Access enforcement should not place an unreasonable burden on the licensee. Licensee shouldn’t agree to police its users or to take remedial action against unauthorized use that is beyond their authority.
A license agreement should require the Licensor to defend, indemnify and hold the Licensee harmless from any action based on a claim that use of the resource in accordance with the license infringes any patent, copyright, trade-mark, or trade secret of any third party.
Licensee should be unwilling to accept less than unlimited liability by the licensor (in line with their insurance limits), for all harms that may be related to the use of the licensed materials.
The waiver clause should state that permitting or ignoring breaches cannot be held against the permissive party. The permissive party has not given up or waived its legal rights to seek damages for those or other failures, inadequacies or breaches.
Licensee must be alert for limitations on damages recoverable by the licensee if the licensed materials are unavailable. Strike any indemnity clauses that do not impose equal burdens upon both parties. Scrutinize clauses very carefully that require the licensee to indemnify the licensor for anything. The library should never agree to take financial responsibility for wrongs it cannot realistically prevent.
In no event should a licensors liability be tied to the value of the contract.
The licensor should agree that its performance always meets or exceeds the standards of commercial reasonability. The license agreement should state the obligations of the licensor to make licensed materials available within a certain timeframe. The agreement should require that reasonable efforts be made to ensure a quality of service comparable to current standards by having adequate server capacity and rate of connectivity.
The licensee should be notified in a reasonable period of time in advance of upgrade and maintenance downtimes. These should be scheduled in ways and at times that minimize inconvenience to the licensee and its users.
The license agreement should include how the licensee is notified of changes or reduction in content or value. It should also reflect, with any reduction in the product’s purpose, an allowance for refund and/or termination.
The licensor should agree to provide documentation, training and support and use data to the licensee.
XIII. Privacy re: data
The confidentiality of individual users must be maintained, especially as respect to students and FERPA. The Licensor will not disclose information about any individual user including information about the specific content of a user’s searches, to a third party without the permission of that individual user, except as required by law. The licensor may be granted right to use disassociated data.
XIV. Appendix / Schedule A – licensed products, prices, main contacts & Appendix / Schedule B – i.p. ranges / sites / addresses
Schedule A: List of licensed material, for each item list title, initial subscription period, (if relevant the start date and end date), format delivery schedule (if applicable) and fee for the initial subscription period. If back files are provided free of charge as part of the license, these should be listed specifically. Include access method.
Schedule B: List of addresses of the licensee’s library premises, domain name(s), and IP addresses and/or ranges. Name of network contact with telephone, fax and email address.