Back in May the ONEAL Project held a curriculum kickoff webcast with our partners at SPARC!
We’ve had a busy few months that included a visit to San Diego for ALA Annual and many other changes behind the scenes we’ll share this August. Until then, here are some recent questions and answers from our curriculum kickoff webcast.
Disclaimer: No one from ONEAL’s project team can offer legal advice. Our responses to questions from the webcast should not be considered legal advice. We are sharing different perspectives and possibilities.
How do you plan your time leading up the renewal date? How do you start and what kind of debrief do you do?
Start with information gathering, which ONEAL covers in the Negotiation Planning Part 2 lesson. It also covers identifying which stakeholders you may want to include in the negotiation, depending on the importance of the agreement. Part of the challenge is prioritizing time and effort.
In regards to debrief, the foundations module recommends keeping a negotiation journal. For projects that involve many stakeholders, you’ll probably want to have a team debrief and document group reflections as well. ONEAL is working on lessons for this in the Strategies module, currently under development and scheduled for release in August, 2024.
As a public librarian, how much room do I have to negotiate as a one system library with these various database vendors? I know we get bigger discounts with some of the consortium groups that negotiate for us, but can I negotiate for larger discounts?
There is always the opportunity to negotiate, you just have different tools when you’re operating as part of a consortium. There are advantages and disadvantages to negotiating independently versus as part of a consortium, and these will depend on the specific context. If you find your negotiation needs are different from what the consortium is pursuing, this is meaningful feedback for the consortium to act on.
Sometimes individual libraries are able to negotiate more favorable terms and rates than they might have received through a consortium agreement. Depending on their level of coordination, a consortium can make meaningful improvements to the position of their member libraries.
Does the ONEAL curriculum include licensing or is the focus only on negotiating cost?
The Foundations module provides an introduction to contracts and licensing, negotiation planning, and goes more depth on how to analyze financial information. The Foundations module is designed so the practices suggested can be applied to a variety of criteria depending on institutional needs and goals. It also provides resources that you can refer to when negotiating licensing including model licensing language and existing vendor contracts.
Are there best practices around Controlled Digital Lending and licensing?
Controlled Digital Lending is a specific legal framework established by this white paper which outlines six requirements for CDL.
Our colleagues looking to develop a best practice could potentially evaluate licenses for how they allow or restrict use of a resource under the legal doctrines that form the framework for CDL in the white paper: Section 107 (fair use doctrine) and Section 109 (first sale doctrine). Libraries and archives in the United States already have these rights, which is how institutions are currently able to implement CDL services.
Are there differences in negotiating outside the United States context?
Yes, there are important considerations depending on your jurisdiction. As the ONEAL Project grows, we’d like to expand to cover issues specific to Canada, Australia, and the United Kingdom. When possible, resources are included or referenced. If you are currently working in those areas and have resources to share, please reach out to the project team.
What are some strategies for how to deal with an inflexible/unreasonable vendor?
In the Negotiation Planning Part 1 module, the Playing the Game presentation discusses managing unacceptable behaviors from negotiating parties.
What happens when your institutional constraints bump against the vendor’s constraints? How do you work around that?
One of the concepts in the ONEAL curriculum is the Zone of Possible Agreement (ZOPA). While traditionally this concept is focused on price, ZOPA can be applied to all aspects of the negotiation. The curriculum discusses how to improve your Best Alternative to a Negotiated Agreement (BATNA) over time in the Negotiation Planning Part 1 module.
Sometimes you do have to walk away if you’re not able to come to an agreement on terms. It’s important to establish your “deal breaker” conditions ahead of time. Walking away is not a failure, it communicates the institution’s boundaries.
How should I handle jurisdiction?
It depends on your institution and you’ll want to talk to your legal office about this to verify. One question to consider: if you got everything else you wanted in a license but the jurisdiction is less than ideal, would the legal office / office of general counsel still sign it?
What resources are available to learn more about licensing and artificial intelligence?
This is emerging; as of this post there are three resources we can point towards.
All TDM & AI Rights Reserved? Fair Use & Evolving Publisher Copyright Statements – SPARC
Fair use rights to conduct text and data mining and use artificial intelligence tools are essential for UC research and teaching – Office of Scholarly Communication
ICOLC Statement on AI in Licensing
How do we negotiate when it’s a proprietary product we NEED for accreditation, and the vendor knows it.
Find the accreditation standards and confirm if this is true. Usually they are available online with the accrediting body, and accreditation standards update over time. Negotiations around resources that faculty perceive to be critical to an accreditation review may require more than one cycle of discussions and interventions on a contract to build the case. Is it that we need the resource, or is it that a specific resource meets accreditation standards in a familiar way?
It is important to decide how to allocate your efforts if a vendor seems unmovable. Your energy may be better spent elsewhere: negotiating other resources and working to develop a better BATNA (Best Alternative to a Negotiated Agreement) at the next renewal.
I am about to inherit the job of negotiating with vendors (background in systems). What is a reasonable target with “big” vendors (i.e., EBSCO, ProQuest, Elsevier) when negotiating renewals? That is, should I shoot for keeping it flat? Agree to 3% increase? Or try to manage cuts?
First you’ll want to look at publicly available price lists and contract terms. You can also refer to pricing surveys such as the periodical price survey published by Library Journal. Consider what the best possible outcome could be (not only what you think would be feasible) and develop your strategies around that ideal. People have successfully negotiated rate cuts when they’ve been able to gather the data to make a case, and used strategies outlined in Negotiation Planning Part 1.
It’s also important with “big” vendors to consider the whole portfolio of investment with that vendor. If you’re migrating systems, buying more materials from a specific platform, or the institution’s needs are changing, all these can factor into the case you make with a vendor.
Have you ever had issues with vendors going to faculty first instead of trying to work with the library?
This is very common. When this happens, it’s a good opportunity to bring the library into the discussion for outreach and communications reasons. Even if you establish a practice of vendors going to the library first, personnel turnover means new reps will go to faculty.
How to handle vendors who have contract language about [the library] being responsible for all user behavior?
Libraries can make reasonable efforts to prevent unauthorized use and agree to inform a vendor if unauthorized use occurs, but in general should not take on liability for the behavior of Authorized Users. You can see examples of model clauses in the B1G Standardized Agreement and the California Digital Library.
How do I remove nondisclosure agreements (NDAs) at a small private institution?
Some strategies to tackle this problem can include: looking at peer institutions to see if they have value statements, working with your administration and legal counsel to make sure the library stops signing NDAs as a matter of policy. You could also work with members of consortia to work on removing NDAs as a group. More transparency around pricing structures and models helps everyone steward resources effectively. Small, private institutions may have a history of accepting NDAs, but this doesn’t have to shape their futures.
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