Charles Oppenheim’s Licence Negotiation Tips

By Charles Oppenheim, Senior Consultant, Naomi Korn Associates

Image credit: Aymanjed

I’ve been in the licensing of digital resources business for nearly 40 years (I first started in 1980); the first twelve years I worked for electronic publishers (Thomson-Reuters, and Elsevier), negotiating licences with other database producers and with libraries. The subject areas ranged from scholarly information, via business information through to real time financial information. Since 1992, I’ve been on the other side, negotiating licences (or advising on such negotiations) on behalf of users or libraries with electronic publishers. One great advantage of my experience on both sides of the fence is that I can recognise phoniness when I see it. On that basis, I offer the following tips to anyone entering into negotiations with a vendor of electronic information, whether on a small scale (maybe subscribing to a single publication), or large-scale (such as “Big Deal” negotiated between a group of Universities and a major digital publisher).

The first, and most important thing is: prepare, prepare, prepare. Think about what you want to achieve in the negotiation, how much you are willing to pay, and so on before you start talking to the vendor. Identify what is “must have” and what is “nice to have” for you or your patron.
Many vendors will tell you “these are our standard terms”, implying that they are non-negotiable. Now of course, if you are small beer for the vendor (maybe you want to get an eBook for your own private use), you may have to swallow what is on offer. What follows is my advice for cases when you represent a potentially significant income for the vendor, or a potentially prestigious client for the vendor. In such cases, we are talking about negotiating with the vendor.
NEVER accept any oral licence, or any oral assurances “that won’t be a problem” or similar. Have everything confirmed in writing.
As a first stage, it is normal for the vendor to send you a draft contract. Read through the draft contract carefully. If there is any wording you don’t understand, or if you don’t understand the implications of a particular clause, ask for a written explanation.
Be prepared to push back against any clause you don’t like. “But these are our standard terms”, “no one has ever complained about this before”, “that’s our standard price” etc., are inadequate responses – keep pushing – and of course, if need be, walk away.
Consult with others (personal contacts, email discussion lists) to see if they have thoughts about a particular clause that concerns you. The Liblicense discussion list is very US-oriented, but it may be useful to join it. The JISCMail library licensing discussion list is less active, but is UK-oriented.
Be prepared to insist on insertion of clauses along the lines of “for the avoidance of doubt, nothing in this contract shall prevent a user from…..” For example, insist on a clause that nothing in the licence shall prevent a user from taking advantage of an exception to copyright built into the law. A surprising number of draft contracts do not include such a clause.
Make sure you cover everything you need or want – there is no point in avoiding possible confrontational issues for a quiet life, or tin your anxiety to conclude a deal.
Be prepared to bargain – “if you give way on point A, I’ll be willing to give way on point B”. The books mentioned below both cover negotiation skills, something that is beyond the scope of this blog post, but which is an essential skill for anyone who has to conduct these sorts of negotiations; of course, there are numerous popular books on how to negotiate as well.
If there are words in the draft contract you do not understand, ask for clarification and if need be, rewording.
You will have two concerns about the negotiation: your concern about the outcome (“substance”), and your concern about the existing and future relationship. Make sure neither concern dominates your thinking and actions.
A collaborative approach offers the greatest chance of producing good results; the skills associated with such a collaborative approach include assertiveness (NOT the same as aggressiveness), supportive climate building, active listening, sensitivity to non-verbal behaviour, empathy, and confronting (not avoiding) differences before working through them. Face to face meetings are much preferable to email for these reasons. Skype or Facetime are not as good as face to face, but better than just email.
Remember that the parties are neither friends nor adversaries; they are problem-solvers. The goal is a good outcome reached efficiently and amicably. So try to avoid offering or demanding concessions too often.
Always separate the person from the problem. Conflicts with someone you dislike might lead you to miss the solution.
Keep copies of all written communications, including emails, and notes from meetings. Of course, also keep copies of all drafts, and the final agreed licence; when it comes to renewal time (and therefore renegotiation), these will prove invaluable for reminding yourself of the issues and personalities involved, and what clauses proved contentious or have turned out to be unhelpful.
Above all, be prepared to postpone discussions, or even walk away if there are terms that are unacceptable to you, your employers, or patrons.

There are two excellent books giving further advice on these topics. Fiona Durrant’s Negotiating licences for digital resources, Facet, 2006 (the key points do not date that much), and Lesley Ellen Harris, Licensing Digital Content (3^rd edition), American Library Association, 2018. Another useful resource is the summary of an important IFLA report at http://blogs.ifla.org/lpa/2018/01/16/the-end-of-ownership-of-library-material/. The full report can be downloaded for free at https://www.ifla.org/node/11582, which makes important points about what licence terms to be wary of.

I always found licence negotiations to be interesting and were frequently fun. So enjoyment is the key word to remember…..

charles@naomikorn.com