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