From: John Cox <[log in to unmask]>
Date: Thu, 2 Apr 2015 10:30:35 +0100

As a qualified lawyer, one-timer publisher and subscription agent, I
did not think it worth commenting on Scott Stangroom's invaluable
posting about killing all lawyers, which was fatuous, unhelpful and
unfunny.  But Ann's considered and very constructive posting has
roused me from my retirement to add some further comments.

Ann is quite right that some vocabulary and legal phraseology can be
difficult to understand - not just in African libraries, but wherever
non-lawyers try to grapple with standard licenses that have been
created by lawyers.  Her comments are absolutely right, but I am
afraid that there may be no easy answer to her point (3).

Some years ago I was responsible for creating some standard license
templates in consultation with both librarians and publishers.
Updated versions are available on www.licensingmodels.org, which is
now maintained by Ringgold.  Each license was designed to be
understood by non-lawyers, and most legal issues were written in plain
language. As the liblicense licensing resources are, they are intended
to make life easier for librarians.  But they do not overcome the
problem many have when faced with a legal document - they are
intimidated by the format and freeze when faced with language that may
not be used every day.

I have just a few suggestions to make to any librarian faced with a license:

1.  Read slowly and thoroughly to understand each term. A good legal
document is one that makes its meaning plain.

2.  If there are clauses that cannot be understood, ask someone in the
law faculty, or someone who may be more familiar with licensing.

3.  Ask the publisher to explain the meaning of clauses that are
unclear.  Ask for the explanation in writing or by e-mail.  Remember
to argue the point; the license is an AGREEMENT between two equal
parties, the publisher and the library.  Even if the publisher is
working through a local representative, it is in the representative's
direct interest to help to complete the deal

4.  Ask the publisher if adherence to the SERU guidelines will be
enough.  If not, ask why not.

5.  Do not sign a license until it is clear what it means.  If in
doubt, seek proper legal advice, even though this may delay completing
the deal.

John Cox OBE
Rookwood, Bradden
Towcester, Northants NN12 8ED
United Kingdom
Tel: +44 (0) 1327 861184
Mobile: +44 (0) 7763 341356
E-mail:  [log in to unmask]


-----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


---------- Forwarded message ----------
From: Scott Stangroom <[log in to unmask]>
Date: Tue, 31 Mar 2015 10:20:33 -0400

I think, "The first thing we do, let's kill all the lawyers".

~Scott

[MOD NOTE:  Can we do better than this???]


Quoting LIBLICENSE <[log in to unmask]>:

> From: Ann Shumelda Okerson <[log in to unmask]>
> Date: Mon, 30 Mar 2015 18:51:03 -0400
>
> I'm participating in a Moodle course on copyright and licensing with a
> group of savvy African librarians, and they engage in lively questions
> on the forum's discussion board.
>
> Here's a question that arose the other day -- anyone have any good answers?
>  (SERU was mentioned.)  Thank you, Ann
>
>
> *Hannatu Abue Kugblenu - Friday, 27 March 2015, 1:37 AM  asked:  How
> can NESLI Model Licenses and publisher clauses be simplified for our
> librarians and students, as the technicalities in both clauses makes
> can be difficult to grasp?*
> *******