From: "Macklin, Lisa" <[log in to unmask]>
Date: Mon, 18 May 2015 14:40:20 +0000

Lisa,

I think its worth noting three things.  First, the Model License is just
that, and there may be clauses that publishers want to remove or change,
much the same as there are clauses that libraries remove or change.  Each
license is negotiated separately, and if the publisher and the library
signed the license with this clause, they would have agreed to its terms.

Second, if the publisher did agree to this clause, where are you
anticipating a dispute?  If the terms of the author agreement are more
restrictive, and the author wanted to exercise the rights granted in the
license, the library could point to the clause in its own license.  Since
the publisher agreed to those terms, they should honor that agreement.  I
think the greatest challenge is informing authors of their rights under
copyright, whether as part of a library license or in general.  I have
worked with many faculty authors who didn¹t fully appreciate that they are
the copyright owner of their work until and unless they sign their rights
over to a publisher.

Third, this clause was adopted from previous work done under the auspices
of ARL.  The reality is that the bargaining power of the institution is
greater than the bargaining power of the individual author.  This reality
is in part what has prompted faculty at some institutions to adopt open
access policies.  If your institution has an open access policy, you may
or may not feel this language is needed.

Finally, in the interest of full disclosure, I worked on the Model
License, although I did not work on the drafting of the original language
on author rights.

Thanks for your interest in the model license.

Cheers,

Lisa

Lisa A. Macklin, MLS, JD
Director, Scholarly Communications Office
Library and Information Technology Services
Emory University
Atlanta, GA 30322
404-727-1535  | [log in to unmask]



On 5/11/15, 6:56 PM, "LIBLICENSE" <[log in to unmask]> wrote:

>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 you¹re referring to also
>reads (or should read) something like ³For the avoidance of doubt,
>Licensee¹s Authors are intended to be third-party beneficiaries of
>this Agreement² ­ 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 Authors¹ Own Works
>clause because ³each author has their own agreement that covers this²?
> The clause itself says, ³Notwithstanding any terms or conditions to
>the contrary in any author agreementŠ² so we¹re already acknowledging
>that there may be contradictions in author agreements between the
>publisher and the author, but if I¹m 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 ³this is already covered in an author¹s agreement²
>argument feels possibly deceptive.  I don¹t know that their agreements
>with their authors comply with what we¹re asking, and by flatly
>refusing to agree to the clause, it seems that their agreements
>probably greatly limit or prohibit an author¹s ability to use his/her
>own work.  Going on a logical assumption alone.
>
>Here¹s the clause I¹m referencing, from the liblicense model agreement;
>
>Authors¹ 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 (³Authors²), whose work
>(³Work²) 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 author¹s 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 Licensee¹s 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 Author¹s 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 Author¹s
>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]