Deal or No Deal – Licensing and Acquiring Digital Resources: License Negotiations

Kara Phillips, Collection Development Librarian/Associate Director at Seattle University Law Library since 1997, has worked for various state agencies in Washington as a contract librarian as well as the Gallagher Law Library East Asian Law Department and Lane Powell Spears Lubersky. Recipient of a Blakemore Fellowship, she studied Mandarin Chinese at the Stanford Center in Taipei, Taiwan in 1996 and during her sabbatical in 2007 will work in China, setting up an American legal collection at Shanghai Jiaotong University School of Law.

Librarians spend a significant amount of time negotiating licenses and other purchases, yet many of us have never had a formal class or training on the topic. In this article, I will apply the techniques and theories described in a classic book on negotiation, Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury, to the licensing context.

No Deal: Positional Bargaining

In Getting to Yes, Fisher and Ury describe the typical negotiation process as positional bargaining. Under this model, participants are entrenched in their position. They are single-mindedly focused on changing the other side's position. Emotions run high and they have difficulty separating themselves from their position. According to Fisher and Ury, there are two kinds of positional bargaining: hard negotiations and soft negotiations. In hard negotiations, the participants are adversarial and their ultimate goal is to win. In the realm of licensing, librarians may be so intent on their position that they forget to consider the vendor's side of the equation. Take for example, a provision on ILL rights. Librarians may view ILL rights as essential in fulfilling a library's mission to share information while the vendor may see the potential for abuse from further redistribution in electronic form. If both sides insist on their position, they may miss the opportunity for reaching a middle ground (such as printing out a hard copy to satisfy the ILL request).

In contrast, when conducting soft negotiations, participants are friendly and favor consensus over conflict. They often acquiesce to pressure to avoid a battle of wills. Soft negotiations most often occur among family and friends when compromises are made to maintain the relationship. This is problematic, however, because librarians who have longstanding dealings with a particular vendor may find themselves trying to avoid conflict by conceding too much and not communicating their interests. The final agreement may not accurately reflect the needs of both sides. Additionally, soft negotiators lose ground if they are facing a hard negotiator on the other side of the table. If you have a soft negotiation style, consider bringing a colleague to the table who is an experienced negotiator, hire a professional negotiator, or outsource the negotiations to a consortium.

Deal: Negotiating on the Merits

As an alternative to positional bargaining, Fisher and Ury recommend negotiating on the merits. Under this model, the participants solve the problem together to reach a workable result. There are four techniques in this model, all of which can be used during license negotiations. The first technique involves separating the people from the problem. During a license negotiation, consider the other side's point of view, reign in your emotions and communicate clearly. You may view a confidentiality clause as an unreasonable gag order and an affront to librarian professionalism, but a vendor may view it as an acceptable way to prevent underbidding by the competition. The parties should concentrate on working together toward a solution rather than getting side tracked by personalities or emotions.

The second technique is to focus on interests, not positions. In license negotiations, a librarian may take the position that access to a database should be available 24/7. The vendor's position may be that scheduled downtime is critical for database maintenance. Both the vendor and the librarian share a mutual interest in providing a reliable product to library patrons. By focusing on their common interests, the librarian and vendor might agree that downtime should occur when usage is lowest with advance notification to patrons. Fisher and Ury recommend a strategy of hard on the problem; soft on the people. Negotiate your interests firmly while working in tandem with your counterpart. Keep in mind that parties may have multiple interests. For example, a vendor may be interested in not only a commissionable sale on a product, but also may see that sale as an entry to offering other products and services.

The third technique is to create options for mutual gain. Fisher & Ury encourage parties to brainstorm options in an uncritical environment and look for ways both parties can benefit. They recommend enlarging the pie rather than cutting it into smaller pieces. For example, expanding the definition of authorized user to include alumni can actually work in the vendor's favor. It can create opportunities for the librarian to market and teach the product to another constituency and may generate future sales for the vendor. Or in situations where certain database content is not available to patrons, the vendor may consider offering occasional access for prescribed purposes such as teaching or non-profit research, satisfying the librarian's desire to meet patron information needs and the vendor's interest in encouraging usage of the product.

The fourth technique is to use objective criteria. The goal is to reach a result based on impartial standards that are legitimate, practical and applicable to both sides. Price increases always present challenges in licensing, especially for libraries with static budgets. Instead of reacting negatively to a price increase, the librarian should discuss the basis for the price increase with the vendor. The librarian and vendor may benefit from reviewing actual usage statistics together as a basis for exploring other pricing options. In some cases, statistics can work in your favor. For instance, if a vendor is reluctant to include walk-in patron usage in a license due to a fear of unlimited usage, statistics on the actual number of walk-in patrons may help alleviate this fear.

Understanding and applying the four techniques of negotiation should assist both librarians and vendors in successfully negotiating license agreements. Even better, the approach can be used beyond the field of licensing. At a recent conference, a librarian presenter and licensing expert stated that she is regularly engaged in extensive and exhausting negotiations with her three kids. This statement resonated with me and I realized that the skills we develop in licensing negotiations, including those outlined above, can be applied to a variety of situations at work and at home. I, for one, am going to negotiate whose turn it is to change the kitty litter box!

Need more information on negotiation strategies, check out the following resources:

Resources on Negotiation Generally

G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People (Penguin Books 2006)

William Ury, Getting Past No: Negotiating Your Way from Confrontation to Cooperation (Bantam Books 1993)

Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (Penguin Books 1991)

Resources on Electronic Resource License Negotiation

Joan E. Conger, Collaborative Electronic Resource Management: From Acquisitions to Assessment (Libraries Unlimited 2004) Chapter 4

Lesley Ellen Harris, How to Be a Better Negotiator, at Copyrightlaws.com

Lesley Ellen Harris, Licensing Digital Content: A Practical Guide for Librarians (American Library Association 2002) Chapter 6

Sharon Srodin, Let's Make a Deal: Tips and Tricks for Negotiating Content Purchases, 28 Online 16 (July/August 2004)

Willem Noorlander, Negotiate Your Way to the Best Price for Information, 10 Information Outlook 27 (March 2006)

Seymour Satin, Negotiating From First Contact to Final Contract, 9 Searcher 50 (June 2001)

Fiona Durrant, Negotiating Licenses for Digital Resources (Facet Publishing 2006) Chapter 3

Fiona Durrant, Negotiating an Online Contract, 3 Legal Information Management 10 (Spring 2003)