From: Ivy Anderson <[log in to unmask]>
Date: Thu, 18 Dec 2014 07:58:43 +0000

I think this is a legacy clause, but not in the way that Toby
suggests. It hails from the days when aggregated databases such
Lexis-Nexis or EBSCO Academic Search were a primary negotiating
target. Those resources are not priced-adjusted when specific content
flows in and out, as big deal journal packages usually are (with some
exceptions), so libraries needed some assurance that the important
content that made the aggregation valuable in the first place remained
largely intact. Although a legacy clause in the sense that it arose in
that context, I believe it remains relevant today as publishers
grapple with whether to license their content in third-party
databases. In other words these content fluctuations continue, and
libraries need some protection (and content aggregators some incentive
to protect their customers) against unanticipated and undesirable loss
of key content. And although I don't think it was originally designed
for big deal journal packages, it certainly does help to ensure that
when societies (say) pull their content from one publisher and
re-license it to another, license fees will be adjusted accordingly.

Ivy Anderson
California Digital Library


> On Dec 18, 2014, at 3:03 AM, "LIBLICENSE" <[log in to unmask]> wrote:
>
> From: Ann Shumelda Okerson <[log in to unmask]>
> Date: Wed, 17 Dec 2014 20:38:42 -0500
>
> Toby, appreciate as always your thoughtful reply, but let me probe
> your answer a bit more.
>
> Are you suggesting that so long as overall usage stats of a given
> journals package of, say, 1000 or 2000 titles stay much the same
> overall or increase, and if the customer service is acceptable,
> then a library would not need further to worry about what is in
> or out of the package from one year to another?  To me, that
> feels like a publisher perspective (and it's what we hear from some),
> but in terms of institutional "fit" with useful content, it doesn't seem
> like a satisfying or institutionally savvy approach.
>
> If you're right, I'm wondering why we librarians put such clauses
> into our contracts if they really don't mean so much after all and it would
> be old-fashioned to analyze and/or take action?
>
> Ann
>
>
>
>> On Wed, Dec 17, 2014 at 8:24 PM, LIBLICENSE <[log in to unmask]> wrote:
>> From: <[log in to unmask]>
>> Date: Wed, 17 Dec 2014 07:06:39 +0000
>>
>> Ann,
>>
>> I wonder if the question is more a legacy from the past when
>> everything was measured in terms of what was delivered - a hangover
>> from the print world and understandable in that print was the only
>> reference point when digital first arrived. In the print world, when
>> usage was devilish to measure accurately and much of the cost was
>> linked to manufacture and delivery, the value was understandably
>> linked to the volume of content supplied.
>>
>> In today's digital world, I think we can do better. Surely the value
>> isn't in the volume of content delivered but in the volume of usage
>> (which is more valuable, 100 journals that are barely used over the
>> course of a year or one journal used by hundreds daily?).
>>
>> I also think value lies in the combination of the volume of usage and
>> the non-content elements of the package offered (e.g. MARC records,
>> customer support etc). Now, if usage falls or the service element
>> deteriorates, then the value of the product is clearly lower and
>> there's an argument for a rebate. Framing agreements in this way would
>> 'catch' the volume element too because if a publisher fails to deliver
>> enough articles, for whatever reason, presumably usage will fall and
>> thereby trigger a rebate clause.
>>
>> But as you say, I don't think there's a 'right' answer for everyone's situation.
>>
>> Toby Green
>> Head of Publishing
>> OECD
>>
>>
>>> On 17 Dec 2014, at 02:23, LIBLICENSE <[log in to unmask]> wrote:
>>>
>>> From: Ann Shumelda Okerson <[log in to unmask]>
>>> Date: Tue, 16 Dec 2014 20:15:48 -0500
>>>
>>> Dear liblicense-l readers.  Your listowner/moderator (me) has a
>>> question for you.  I would very much welcome the views of anyone on
>>> this list, whether publisher or librarian or someone in the scholarly
>>> communications chain.  There's no right answer; in fact, I'm not sure
>>> there is even an answer, but I was in a group that started discussing
>>> this matter and we felt caught short.  And we felt we should have a
>>> reasoned opinion, when we did not.  Please read on.
>>>
>>> Most many big deal journal packages contain language [such as that
>>> below] re. modification to "portions of the Licensed Materials."  The
>>> contracts say that if any of the changes make the materials less
>>> useful, the institutions may seek to terminate this agreement for
>>> breach.  And, there will likely be language of this sort: "If any such
>>> withdrawal renders the Licensed Materials less useful to Licensee or
>>> its Authorised Users, Licensor shall reimburse XX for the withdrawal
>>> in an amount proportional to the total Fees owed."
>>>
>>> My question is this:  if my library has a "big [or medium] deal,"
>>> let's pretend it's 300 or 500 or 1000 or 2000 titles, what is a
>>> reasonable expectation for the numbers or percentage of content that
>>> will leave the package before the library or consortium would either
>>> seek reimbursement (more likely) or total termination (less likely)?
>>>
>>> Do libraries (or consortia) review the big-deal lists each year to look
>>> for changes?  Every 3 years? If there were a loss of previous titles
>>> in the amount of 5%, would it be a concern? How about 10%?
>>>
>>> Of if not a percentage "bright line," then what would cause a review
>>> of the list and a concerned conversation with the big deal publisher?
>>> Would it be the loss of a couple of absolutely key titles?  the loss
>>> of a particular smaller publisher's journals list?  a disciplinary
>>> impact? a dollar impact?  If "it depends," what does it depend on?
>>>
>>> Do libraries care very much about what's actually in these large
>>> packages, or are we too busy to pay attention to their changes? What
>>> would it take to get libraries' attention?
>>>
>>> Thank you, Ann Okerson
>>>
>>>
>>> *******
>>>
>>> "Notification of Modifications of Licensed Materials. From time to
>>> time, Licensor may add, change, or modify portions of the Licensed
>>> Materials, or migrate the Licensed Materials to other formats. When
>>> such changes, modifications, or migrations occur, the Licensor shall
>>> give notice of any such changes to Authorized Institutions as soon as
>>> is practicable, but in no event less than thirty (30) days in advance
>>> of modification. If any of the changes, modifications, or migrations
>>> renders the Licensed Materials substantially less useful to the
>>> Authorized Institutions or its Authorized Users, the Authorized
>>> Institutions may seek to terminate this Agreement for breach pursuant
>>> to the termination provisions of this Agreement.