A new twist -- securing authors' rights when negotiating content licenses: an interview with Julia Blixrud, ARL and Ivy Anderson, University of California

Fairly Used 2013-03-30

ivyanderson.JPGA New Twist -- Securing Authors' Rights When Negotiating Content Licenses: an interview with Julia Blixrud, ARL and Ivy Anderson, University of California
Conducted by Mary Minow and Eli Edwards, at ALA Midwinter Meeting in San Diego, California
Minow: Tell us about this major new step forward in the quest for open access.
Julia Blixrud: A part of the background for this effort was an author rights addendum that came out of work several years ago by SPARC, the Scholarly Publishing and Academic Resources Coalition. We worked with lawyers to develop a legal instrument that modifies the publisher's agreement and allows authors to keep key rights to their articles.  How could authors amend their agreements to allow them to use their own work in the way they wanted to?
Ivy Anderson: That was for an individual author, which is different from content licensing.
Blixrud: At the time, we thought the best way to be able to get our authors' content made freely accessible in libraries was for authors to say, "oh, wait I ought to retain some of my rights in order to be able to deposit and use my work in my environment."
You see, a lot of authors get an agreement from a publisher and they just automatically sign it without reading it. The agreement basically says, we the publisher have all rights to do whatever we want with this article in perpetuity.
Anderson: Which means that if you're the author, and you want to reuse your own work, you may have to get permission.
Blixrud: Get permission, or pay some fees ... and no one at your institution can do anything with your stuff either, unless they bought it and paid fees and so on.
The author addendum was the first attempt to get that content opened up and made available to the author herself as well as to the institution.
Minow: How's that been working out? SPARC put out some wonderful training tools, videos, slide shows, etc., for campuses to use to educate faculty authors.
Blixrud: Yes, but it's hard. It's a one-off. It's an added step for the author to get the publisher to understand why they have to sign the new agreements. Some of the publishers made an initial push back, and the authors would say, I don't want to go through the extra effort to push back on it -- that's one more hurdle I have to jump through get my work published.
We don't have data. There's no reporting when they had a failure.  We get stories once in a while of someone who persisted and was successful. And a lot of publishers have created better contracts that let the author retain some rights. Some people just strike through "exclusive" and write "non-exclusive."  I've done that myself.
Sometimes it turns out that the publisher actually has a better agreement that they'll pull out if there is push-back.
Anderson: There's also a real problem of scalability and consistency. The authors and institutions have a hard time knowing what rights they've actually obtained.
Blixrud: Right - because I could adjust my agreement, but my buddy in the next office might adjust his agreement slightly differently.  So now what does the university have for its institutional website? It's hard to keep track of what the different authors have agreed to. Do the authors even know what they've signed? The burden gets put on the libraries to do one-offs on each of these articles.
Minow: Sounds impossible. And the problem will only get worse in five years. Who remembers what individual agreements they signed five years ago?
Anderson: Right. There are two aspects to the environmental picture to start with.  First, there's the individuality of each author's agreement -- a separate agreement with each publisher for each publication.
Second, many publishers now have green open access policies that are listed on the SHERPA ROMEO site. It's a great site that lists what the publishers' open-access policies are. But they're all slightly different, with different attributes, and the publishers can change those policies at any time.
While this has introduced some organization and orderliness to this environment, it's still not something that's completely reliable.  One publisher may be green on that site and another may not be so green, or a green publisher today may not be so green tomorrow.  It's hard to rely on the persistency of those rights.
A third environmental aspect is the institutional policies that are emerging ...
Minow: Do you mean institutional policies like Harvard's that tell the faculty authors that they must deposit an electronic copy of their work to the school? [Editor: See our interview with HLS's Michelle Pearse for more information on Harvard's open access policies, linked above]
Anderson: Yes -- many institutions and academic faculties are now adopting policies that require academic authors to grant the institution certain rights in the articles that they publish, such as the right to deposit in an institutional repository and to make the work available for academic use.
Blixrud: We don't have a tradition in the US or Canada I don't think, of faculty articles as work for hire. Europe has more of a work for hire environment. Here, we have the tradition that the content faculty authors produce is their own, and they get the copyright.
Through these policies, the university faculty are saying, "we'd like to make the content we've been producing more widely available for scholarly use."
Anderson: So these policies are springing up, but in many cases they still rely on individual action This brings us to the latest development: the notion of using the vehicle of the content license that libraries negotiate with publishers to institutionalize this bundle of rights.  Here's our press release.
Minow: Fabulous. I hadn't heard of that. Using library content licenses to negotiate author rights.
Anderson: This idea has been around for a while -- for example, the NESLi2 national educational site license in the UK has had a model clause like this since 2006.
The U.S. hasn't had a similar model until now, although some of us have been advancing the idea.  Since libraries represent their institutions in negotiating agreements with publishers, largely for journal content, there is a ready a vehicle in the form of an institutional agreement -- one agreement between the institution and the publisher that secures content, or a set of rights over that content. 
The idea is, why not use that vehicle to secure the right of the institution's affiliated authors to retain rights to their work?
Minow: They're so unconnected, aren't they?
Anderson: I think the feeling is that they're not really unconnected.  We're representing the institution, and we're in a negotiation relationship with the publisher, and our affiliated authors who publish with that publisher also have a stake in and rights in that content that we are licensing back.  So why not use this relationship to also negotiate the authors' rights?
Blixrud: Most of the content that we're talking about with this agreement are with the large publisher packages.
Say there's an author at an institution who writes an article for an Oxford journal. What we're saying is that in our agreement with Oxford, is that we'd like to be able to have that paper open for us to put in our repository, to be able to used for other scholarly purposes on our campus, whether or not the author has signed some other agreement.
The author has said, Oxford can publish this.  And we're saying to Oxford, hi there that's our author, and we'd like to use that work in our institution. We'd like to negotiate that as part of our agreement with you along with all the other things we're negotiating with you on our contract.
That way, even if our authors forgot to negotiate or were oblivious, we still get the content for our repository.
Minow: Nice.
Blixrud: This came up because this one-off effort with authors who had signed article by article, publisher by publisher was a lot of labor. We knew we had to find a better system, and thought the contract license is a better place to do that, at least for large bundles of content.
Anderson: That is the place where there already is an institutional relationship with the publisher.  No other part of the institution typically negotiates with publishers; it's the library that has that established set of relationships. This idea came up at a meeting that ARL hosted on digital repositories in 2009 about how to develop more scalable repository infrastructure and policies.
Minow: This is interesting. I can see lots of complications. What about retrospective content by an author?
Blixrud: It's whatever's in the package. If my package agreement says I'm getting current content plus past x-years, that's what our clause would indicate.
Anderson: This is initial language that we've put out for comment at this point.  We're inviting institutions to adopt it as a matter of policy, but there is also an expectation that it might iterate over time.
Blixrud: It's broadly stated. That's why it's in a blog, rather than something formal. This is an ad hoc group -- we think this covers what we think is needed and we'll make it public now so we can get comments. There's a group of people working on this, but probably not every perspective is represented.
Minow: Another issue, is which contract trumps the other. It seems timing would factor in. That is, what if the author signs a new contract after the institutional content license is signed?
Anderson: That's a good legal question. I'd be interested in your view!  We do have four lawyers in this group, and I vetted the clause with our own institutional counsel, particularly about the issue of making authors third party beneficiaries in a contract between the institution and the publisher.
Blixrud: In a practical sense, the use of this content within the institution, I am quite sure that every institution would weigh in the author's preference.
Minow: How would you capture an individual author's preferences in a blanket contract?
Blixrud: Well, most of the institutional mandates for deposit I've seen have or are building in opt-out clauses. That is, if a faculty member says, I don't want to play in this agreement, they have an out.   They usually have to say why they want an out, so I expect something similar. 
But part of my question would be to the author, "why wouldn't you want it to be available to everyone in the institution?"
Minow (playing author): Royalties.
Blixrud: In fact, the benefit to journal authors is visibility, not royalties (unlike book authors).  You want to demonstrate impact in your field.
Greater open access means you're more visible and we're increasing knowledge.
It's rare that authors opt out.
Anderson: My understanding is that at Harvard, which has an institutional policy, a lot of the opt outs are because the publisher won't allow it -- the author wants to publish in journal X, and the publisher Y will not comply with the Harvard policy, so the only way to publish is to get an opt-out waiver from the institution.
A clause like this is meant to help that situation by trying to exert some additional institutional leverage on the relationship with the publisher. "We want to ensure in our contract that you will allow our authors to retain their rights, and by the way, we're spending a lot of money on your journals.
Minow: Is there any embargo? That is, is there say, a six month delay before an author can distribute the content?
Anderson and Blixrud (together): The language doesn't speak to that.
Minow: Other expected pushbacks from publishers?
Blixrud: There may be some pushback from a publisher who may say "I don't need that clause because I'm green" [Ed. note: See Sherpa/Romeo for list of green publishers]
Minow: It seems to me that if a publisher is already green, it would not be a problem to sign the agreement.
Anderson and Blixrud (together): Right!
Anderson: Some commenters have suggested that a publisher's own green language should be incorporated into the agreement.
Blixrud: We've put the model clause out there, but the agreements that are signed may have something different along the road.
Minow: Ah, but then you'd still need to keep track of the different agreements.
Blixrud: Right. And as Anderson said we're trying to get consistency ... not have all publishers doing something differently.  The labor costs of figuring out what you can and can't do with one individual article are tremendous.
Anderson: We want to make these transactions more efficient, and also by being more consistent with model language that everyone can agree to, the result will be more scalable for publishers as well. We've seen a lot more standardization around content licenses in general, so this is just one additional piece that can be added to those models that would make it more efficient for the publishers. They wouldn't have to refer to their own internal legal counsel every time another library comes to them with an agreement, saying what about this version, what about this language.
Minow: Who is a member of the institution? What about visiting professors?
Blixrud: That is part of the contract. You would have defined who your users are in the contract.
Anderson: It's similar to defining authorized users, which are in fact controlled by institutional policies. Who you give an ID card and email address to helps define who the institutionally affiliated author is.
Edwards: What about portability when an author leaves the institution?
Anderson: The model clause doesn't give the institution rights -- it gives the author the rights. It says the author shall retain rights to use their Content for a list of scholarly and educational purpose including deposit in institutional repositories.
Minow: I thought it was the institution. Isn't it tricky to negotiate for authors?
Anderson: Our legal counsel found it to be okay.
Blixrud: We're negotiating on behalf of these same people now, so they have access TO content.
Anderson: We do this every day when we negotiate on behalf of our community. Vendors, publishers all have Terms of Service somewhere on their site, often embedded.  So our agreements always have a clause stating that notwithstanding the Terms of Service on the provider's site, if they are sufficiently different, our terms will prevail. Why even negotiate terms at all if our users are subject to a contract of adhesion on the website?
Minow: This is really interesting. I'll be interested to see what happens.
Blixrud: We expect some will go ahead and sign -- especially green publishers. As for others, if it just keeps showing up, they will probably eventually sign. We felt the best thing we could do is give people real language, real clauses. If in every agreement it keeps coming up, the other party will have to notice that this is important. It's not going to go away, and they'll ask, "what can we do to meet that need?"
That's what we've learned over the years. You just have to keep pushing on the things that you need.
Minow: What about ebooks?
Anderson: You've rightly identified that book content is often different because of royalties. 
Blixrud: This is for journal content. Ebook models are all over the map.
Anderson: We have open access relationships with publishers who publish both journals and books, and we've had to clarify that this only applies to journals.
Edwards: Do you see differences across disciplines - business schools, law schools, medical schools, etc., all with different mindsets?
Anderson: We haven't seen those kinds of differences.
Blixrud: At the ARL level, most of the contract negotiations are for content used across the institution. There may be separate contracts for medical and law, but most content is to serve everyone.
Anderson: The strongest open access movement is in the biomedical sciences, but I don't think there's a protectionist view in non-science disciplines, just a lack of outside impetus. The biomedical and other sciences frequently have grant funding and typically engage in highly collaborative, data intensive research that requires widespread geographic teams where everyone needs access to the same content, whereas the humanities typically don't operate that way.  
Minow: What about all the small publishers? Is the focus on large publishers?
Anderson: The best estimates are that there are about 25,000 peer reviewed journals. Large publishers control a significant fraction, but there are still lots of individual publishers and societies.  Some of these may sell their content online through an aggregator. We can't negotiate these rights with aggregators; they're not in the position to grant them.
So a limited number of publishers cover a large percentage of content.
Blixrud: It's an 80/20 thing. Life will be a lot better if we get the 80%.
Minow: Any related efforts?
Anderson: I mentioned earlier the NESLi2 initiative in the UK (there's a link in our blog).  And there's a new joint UK-European effort to collaborate on similar language.  We're staying in touch with these efforts.  
Minow and Edwards: Thanks so much for talking with us today.
Mary Minow is the Executive Editor of the Stanford Copyright & Fair Use site.
Eli Edwards is an intern and Content Minion of the Stanford Copyright & Fair Use site.
Julia Blixrud is the Assistant Executive Director, Scholarly Communication, for the Association of Research Libraries where her responsibilities include promoting positive change in the scholarly communication system.  From August 1999 to spring 2009, she also served as the Assistant Director for Public Programs for SPARC, the Scholarly Publishing and Academic Resources Coalition.  
Ivy Anderson is the Director of Collection Development and Management at 
the California Digital Library, where she coordinates a broad range of 
shared collections activities encompassing licensed content, management
of shared print collections, and mass digitization on behalf of the ten 
campuses of the University of California system.  Before coming to the 
CDL in December 2005, Ivy was Program Manager for E-Resource Management
and Licensing at the Harvard University Library, where she developed and 
managed a shared licensing program on behalf of Harvard's many