Alpsp contract negotiations

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

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

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  • Thank you for standing by and welcome to “Copyright in Motion” - an online seminar sponsored by Copyright Clearance Center. Before we begin I have a couple of WebEx housekeeping items.Sound for today’s event is being brought to you via a one-way Audio Broadcast stream, which plays sound directly through your computer’s speakers or headset. Please do not close the Audio Broadcast window (in the upper left corner) during today’s presentation.If you are experiencing any challenges with the audio broadcast, close the audio broadcast dialog box in the upper left hand corner and access the audio portion via telephone per the instructions on the screen.If you are dialing in from a location other than the US or Canada and you are experiencing challenges with your local access number, you may call in using the US/Canada toll number. During today’s event, attendees will be in listen-only mode. There will be a brief Question and Answer session at the end of today’s presentation.If you have a question during the presentation, please submit it online by using the Chat panel, located in the lower-right side of your screen. If you are in the full screen mode select the “quotation” icon located on the floating toolbar in the lower right side of your screen. Simply type your question into the dialog box, and click the Send button.As a reminder, this presentation is being recorded.If you are experiencing technical issues, please contact WebEx Technical Support at: 1.866.229.3239.
  • Michele introduces speakers
  • Most of you already know who CCC is, but just to refresh….CCC is the world’s expert on copyright licensing solutions, empowering those who create content to share information seamlessly with those who need to use it.Academic institutions and businesses around the world rely on copyright protected content every day. CCC has developed a new generation of licensing solutions that promotes the free flow of information, which drives innovation, collaboration and creativity.An international licensing expert, CCC works with other thought leaders, government agencies and policy makers to streamline copyright licensing across the globe. A founding member of IFRRO an international network of reproduction rights organizations (RROs); CCC has mutual agreements with sister RROs worldwide; and licenses individuals in more than 180 countries.
  • Co-sponsoringALPSP was formed in 1972.  Today it is the only international association representing all types of nonprofit publishers, and is the largest trade association for scholarly and professional publishers. It has more than 360 members in 36 countries, publishing scholarly content in many different ways.  Over 10,000 journals are published by ALPSP members as well as numerous books, reports, databases and other products and services.Membership of ALPSP has been taken up by a wide range of different types of publishers - journal publishers, book publishers, learned societies and professional bodies, database publishers, university presses and intergovernmental organizations. The variety and range of the 260+ publisher members and the 100+ associate members who provide services to the sector provides a unique network serving the interests of scholarly publishing worldwide.
  • Please note that the ACS Single Site License is virtually identical with the exception of the multiple-site and consortium details.I also planned on referring to the NESLI License that we’ve used in past ALPSP presentations, but was thinking I would need to scan that one, as I didn’t have another way of making it available as part of the presentation.
  • This has been a great session and we would like to thank ALPSP for sponsoring this event with us. We will continue to partner with ALPSP to bring you these informative sessions in the future.If you have any questions please feel free to contact with Isabel or Educational Services.Thank you

Transcript

  • 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
  • 25. Rights & Obligations of PartiesMust Be Clear
    Be certain that the rights and obligations of the parties are clearly delineated in the agreement. If you have to guess, then clarification is needed.
    Ideally:
    • [Company/Association] shall do the following. . . .
    • 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