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]