From: "Evans, Gwen" <[log in to unmask]>
Date: Thu, 18 Dec 2014 19:40:29 +0000

Hello Ann — our (consortium) lawyers expect such a clause as standard
business practice. The value of the contract is based on the content.
If the content (and/or associated services) materially changes, it is
a different product, and the price should be adjusted. We have similar
clauses for cloud-based or hosted services — if we lose access or
service for a certain percentage of time, then there is a refund.

At least here, librarians in the consortium do pay attention when
individual titles go in and out. While an individual library might not
notice low use and low value titles going away, on the consortial
level the chances of someone noticing are much higher. And members
always need to know when titles change in order to manage their access
points and associated services. The appearance or disappearance of
titles involves a lot of indirect costs in terms of staff time for
libraries, and this gets multiplied at the consortial level. Titles
need to be deleted or added in the catalog, the A-Z list/link
resolver, discovery layer, and possibly other places, for each library
as well as at the consortium meta-level. The "publisher perspective"
that Ann references seems to ignore the rather complicated apparatus
that supports multiple access points --  the bridge between A&I
databases and full text, or the mechanism that allows a patron access
from a Google Scholar search or a discovery layer search, or a
patron's habit of going to a particular title in the A-Z list of
journals. Some "big deal" journal packages are quite customized, so
there isn't a one-size-fits-all that the publisher controls (it's not
a database; at least not yet). So a significant decrease in content
adds a lot of work for librarians that are trying to make sure that
they have accurate inventory information for their various access
points (which seems to me to be an essential part of librarianship).
At the moment, a lot of that work is based on the title as the
relevant unit. From the business point of view, the deal is not only
of less value, it has actually added costs to subscribers in order to
manage less content.

As Toby Green suggests, I could imagine developments that would make
this costly management less relevant in the future — that the idea of
the journal package dies in favor of an article database model under a
particular brand (the Perfect Academic Press Materials Science
Collection), or a publisher just publishes ONE BIG JOURNAL with
everything published under that name — the mega-Journal of Exemplary
Peer Reviewed Articles from Perfect Academic Press. However, you would
have to change the way faculty in particular think about the
conceptual containers of their content, both as they consume it and as
producers who are proud to say "I published in Nature" aka a
particular branded stream of  periodically supplied content relevant
to particular disciplines. Given disciplinary focus, it seems that you
would just be renaming an essentially journal-esque entity and the
same management issue would exist.

It is also one of the reasons that adding a lot of content that
libraries didn't request into a package  in order to justify a price
hike is extremely unpopular. It's not just the price hike for titles
of unproven value or desirability. It is insult to injury — in order
to make those titles discoverable and accessible, there is a lot of
work involved that costs libraries additional money in a tight
environment. Multiply that across a consortium and the costs add up
far beyond the actual extra cost of the deal.

Same with free trials of content — it's not free, if you want it to
actually be accessible to patrons. Thanks for the "free" kitten. In
the scenario directly above, you are trying to sell me a kitten of
uncertain lineage, mousing ability, and temperament.

Best, Gwen


Gwen Evans
Executive Director, OhioLINK
http://www.ohiolink.edu/

ph: 614-485-6608
[log in to unmask]
1224 Kinnear Rd
Columbus, Ohio 43212

*******

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.