From: "Mackinder, Lisa" <[log in to unmask]>
Date: Mon, 11 May 2015 15:32:28 +0000

Hi Ivy

As always, I appreciate your wisdom on things like this!  How do the
legal experts feel about the possible contradiction that could arise
out of the first sentence, "Notwithstanding any terms or conditions to
the contrary in any author agreement..." and the sentence you mention,
"...Licensee's Authors are intended to be third-party beneficiaries
of this Agreement"?  If their author agreements severely limit the
ability for an author to use his/her own work, yet the license we
negotiate allows for broader use, would contract law come down on the
side of our license and allow that use to continue, or on the side of
the publisher's agreements with the authors and disallow it?

My head hurts.

Lisa

Lisa Mackinder | Head of Acquisitions and Collections Services
Alden Library | Ohio University
740-593-2707 | [log in to unmask]

-----Original Message-----

From: Ivy Anderson <[log in to unmask]>
Date: Fri, 8 May 2015 07:21:18 +0000

Lisa,

I would advise the publisher in question to rethink their position.
While many publishers used to take the stance that institutional
content licenses should not address author rights,  we are finding
that this is changing as all parties increasingly recognize that
institutions have a direct interest in and a responsibility to craft
agreements that serve the members of their community in their roles as
both readers and authors.  While authors can certainly negotiate such
provisions individually, this clause streamlines the process for
everyone.  In fact, I believe the clause you’re referring to also
reads (or should read) something like “For the avoidance of doubt,
Licensee’s Authors are intended to be third-party beneficiaries of
this Agreement” – i.e. recognizing that the Author is not a direct
party but can take advantage of the rights that have been negotiated
by the institution on his or her behalf.  A number of legal experts
participated in the drafting of this clause and found it legally
sound.

Ivy Anderson
Director of Collections
California Digital Library
University of California, Office of the President
[log in to unmask]  |  http://cdlib.org



From: "Mackinder, Lisa" <[log in to unmask]>
Date: Thu, 7 May 2015 13:39:05 +0000

What do you all make of a publisher who rejects the Authors’ Own Works
clause because “each author has their own agreement that covers this”?
 The clause itself says, “Notwithstanding any terms or conditions to
the contrary in any author agreement…” so we’re already acknowledging
that there may be contradictions in author agreements between the
publisher and the author, but if I’m understanding this clause
correctly, the intent is to hold the publisher accountable to a higher
standard in their dealings with their authors who are also authorized
users of our license agreement (i.e., authors affiliated with the
institution).

To fall back on the “this is already covered in an author’s agreement”
argument feels possibly deceptive.  I don’t know that their agreements
with their authors comply with what we’re asking, and by flatly
refusing to agree to the clause, it seems that their agreements
probably greatly limit or prohibit an author’s ability to use his/her
own work.  Going on a logical assumption alone.

Here’s the clause I’m referencing, from the liblicense model agreement;

Authors’ Own Works. Notwithstanding any terms or conditions to the
contrary in any author agreement between authors and [publisher],
authors who are Authorized Users of Licensee (“Authors”), whose work
(“Work”) is accepted for publication by [publisher] during the Term,
shall retain the non-exclusive, irrevocable, worldwide, royalty-free
right to use their Work for scholarly and educational purposes,
including self-archiving or depositing the Work in institutional,
subject-based, national, or other open repositories or archives
(including the author’s own web pages or departmental servers), and to
comply with all grant or institutional requirements associated with
the Work. For the avoidance of doubt, it is the intent of the parties
to this License Agreement that Licensee’s Authors are third party
beneficiaries of this provision of the Agreement. Nothing in this
section shall eliminate or limit any other rights that Licensee or any
Author may have to deposit, host, or make available the Work published
by [publisher].

Scholarly and educational purposes encompass teaching, research, and
institutional needs, including but not limited to the right to (a)
use, reproduce, distribute, perform, and display the Work in
connection with teaching, conference presentations, and lectures; (b)
make full use of the Work in future research and publications; (c)
republish, update or revise the Work in whole or in part for later
publication; (d) meet requirements and conditions of research grants
or publishing subventions provided by government agencies or
non-profit foundations, and; (e) grant to the Author’s employing
institution some or all of the foregoing rights, as well as permission
to use the Work in connection with administrative activities such as
accreditation, mandated reports to state or federal governments, and
similar purposes. In all cases, the Author and/or the Author’s
employing institution will be expected to provide proper citation to
the published version of the Work.


Thoughts?

Thanks for any input!

Lisa

Lisa Mackinder | Head of Acquisitions and Collections Services Alden
Library | Ohio University
740-593-2707 | [log in to unmask]