From: "Seeley, Mark (ELS-WAL)" <[log in to unmask]>
Date: Thu, 2 Apr 2015 14:05:17 +0000

Lawyers are excellent at complexity, and less good at clarity and
simplicity-- that is the challenge I think in good lawyering.  For
Elsevier we have always tried to think about clarity in the license
language, and tried not to do too many whereas, hereby and herewiths--
although they are sometimes handy and I see we still have one or two
in our preamble section.  SD sample agreement can be found at:

http://info.sciencedirect.com/sciencedirect/buying/primary_license_options/samplelicenses

On the language point, we have translated versions in French and
Mandarin, and I believe our team in Japan also does a local Japanese
version.  But otherwise we do try to stick with the English language
template, which may be odd for a Dutch-headquartered business, but
science publishing accustoms us to thinking that for good or ill
English is the strongest international language in this space.

I agree with Ann that practice and training certainly help, but I also
think dialogue and trying to understand the perspective and point of
views of the respective parties will help in getting simpler and
clearer language.  I've always used the Liblicense model license, and
I've certainly spent time looking at JISC/NESLI and other models, as a
base for our thinking about issues that we should address.  Elsevier
was early to address questions such as post-termination archiving,
coursepack use, even ILL.  However in working with the STM association
Copyright Committee on our comments on the latest Liblicense model
agreement, we did feel compelled to point out that phrases which are
often very dear to the library community, such as "fair use", are
actually susceptible to many differing and competing interpretations
(look at the hash that the courts in different circuits sometimes make
of this), which is why we do not use the phrase in the Elsevier
license template.  We are always open to hearing from library
negotiators as to exactly what usage rights they are looking for that
they feel are not covered in our usage grant and which might be
covered under someone's interpretation of "fair use" but we don't
often get a precise response.

Having said that we prefer clear and concise language, particularly in
the usage grant clause and the restricted use provisions, we are
guilty of using phrases like "print, download and store a REASONABLE
portion of individual items..." and we sometimes discuss with library
negotiators the exact definition of "reasonable"-- of course what we
generally mean by this is that we want to support genuine research
activity-- so it is about a researcher who is conducting a literature
search and downloading relevant content--- but that this shouldn't
amount to an attempt to download an entire database or an entire
journal or something along those lines.  So if I was consistent with
my mantra of absolute clarity I would say "ok it's 100 items and no
more" and then we'd have an interesting discussion about what happens
on the 101st download.

There have been attempts such as the ONIX working group, now part of NISO, see:

http://www.niso.org/workrooms/onixpl

to characterize key clauses and identify common elements, but I'm not
at the moment sure how active this project is-- would be interested to
hear from others on this list serve about it.

Trade associations do sometimes propose model license clauses, which
has been done for TDM:

http://www.stm-assoc.org/2013_04_17_Sample_TDM_Clause_Libraries_Research_Inst.pdf

but there are often worries by trade association lawyers about the
antitrust/competition law elements-- competitors banding together to
set a standard.  Usually however antitrust/competition law principles
are more flexible when it comes to purchasers and producers talking
together about model clauses -- the STM TDM clause actually came out
of discussions between publishers and the pharma industry so it is a
good example.

Best,
Mark

Mark Seeley, Senior Vice President & General Counsel
Elsevier
225 Wyman Street, Waltham, MA 02451, USA
2: +1 (781) 663-2241; Mobile: +1 (781) 354-4429
Executive Assistant:  Matthew Braman +1 (781) 663-2308
M: [log in to unmask]
Internal Elsevier Legal department intranet site:
http://nonsolus/legaldepartment/
External information at http://www.elsevier.com/wps/find/homepage.cws_home


-----Original Message-----
From: Ann Okerson <[log in to unmask]>
Date: Wed, Apr 1, 2015 at 7:47 PM

The librarians in this course were reacting to several things about
the NESLI and publishers' licenses (and certainly many others). They
are by no means alone - I've encountered the problem for years now.

Here's what concerned them:

(1)  A great deal of "technical" vocabulary (words like breach,
damages, fair use, warranties, and more; see:
http://liblicense.crl.edu/resources/licensing-vocabulary/).  Such
vocabulary is useful and important in a contract, and it pretty much
has to be learned.  A lot of the meanings become clear in context and
in negotiations.  Once the definitions are understood, this part of
the problem concern goes away.  But learn one must.

(2) Arcane writing styles, with many quaint "herewiths" and "hereby"
to launch clauses and phrases.  And lots of boilerplate that sounds
like gobbledygook.  We still see a great deal of this, and it's not
necessary.  Licenses can be written in plain, clear language.  Not all
legal boilerplate is essential, simply because it's been there for
some years.  I tell folks in workshops and courses that if they can't
understand a clause, it could well mean that the clause should be
written in more straightforward words; they as customers should
request those clarifications.  I agree with Scott that many
well-meaning contract lawyers need to revisit their language for
clarity.

(3) Language of the contract.  This is tough.  The great majority of
e-resources licenses are written in English, and nearly all the rest
in other primary western languages.  Now, this poses a real challenge
for people whose primary language is NOT one of those languages, or
who are not fluent in same -- which is the case for many in our world.
This puts people in non-Western countries in a difficult (to
impossible) situation.  The terms of use they're being asked to agree
to (or wish to negotiate) may be poorly understood. Many western
publishers have in-country agents to deal with local librarians, but
those agents are not so likely to take time to "educate" their
customers in the nuances of the publishers' contracts, even if the
agents understand them (which they may not).

What can we do about #3, which is a crucial issue?  Are there any
publishers who have experience of working in an array of foreign
languages regarding e-resources contracts?  How do you do it?  Would
like to hear from you, please.

Thank you, Ann Okerson