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March 23, 2011
Cornell University Library Rejects Nondisclosure Clauses in Publisher and Vendor Agreements: "An open market will result in better licensing terms."
Enough is enough. Cornell University has publicly declared it has had enough with publisher and vendor NDAs that require nondisclosure of pricing information or other information that does not constitute a trade secret and endorses ARL's position that member libraries should not sign them by taking action. Cornell University Library will no longer tolerate such clauses in publisher and vendor licenses for information services and resources.
In its press announcement, Cornell University Library stated
It had become apparent to the entire community that the anticompetitive conduct some publishing firms engage in results partially from these nondisclosure agreements in contracts.
The more libraries can communicate with one another about vendor offers, the better they are able to weigh the costs and benefits of any individual offer. These limiting clauses, therefore, hinder the Library's ability to work openly, collaboratively and transparently
The full text of Cornell University Library's policy statement is republished below:
Cornell University Library’s Position on Nondisclosure Clauses in Licenses
To promote openness and fairness among libraries licensing scholarly resources, Cornell University Library will not enter into vendor contracts that require nondisclosure of pricing information or other information that does not constitute a trade secret. All new and renewed licenses submitted with nondisclosure clauses will not be signed but henceforth will be referred to the Associate University Librarian for Scholarly Resources and Special Collections for further negotiation.
Background and Rationale
Occasionally in licenses governing electronic resources, publishers will request that the Cornell University Library (CUL) treat the subscription price as confidential information and not disclose it to third parties. In the past, some libraries have tolerated these clauses in the belief that they might result in a lower cost. This, however, is a position that CUL can no longer accept.
It has become apparent to the library community that the anticompetitive conduct engaged in by some publishing firms is in part a result of the inclusion of nondisclosure agreements in contracts. As Robert Darnton recently noted, by “keeping the terms secret, … one library cannot negotiate for cheaper rates by citing an advantage obtained by another library.” For this reason, the International Coalition of Library Consortia’s “Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information” states that “Non-disclosure language should not be required for any licensing agreement, particularly language that would preclude library consortia from sharing pricing and other significant terms and conditions with other consortia.” The more that libraries are able to communicate with one another about vendor offers, the better they are able to weigh the costs and benefits of any individual offer. An open market will result in better licensing terms.
Additionally, nondisclosure agreements conflict with the needs of CUL librarians and staff to work openly, collaboratively, and transparently. This conflict increases the likelihood that the terms of a nondisclosure agreement would be inadvertently violated, posing a threat to the university.
CUL endorses, therefore, the position of the Association of Research Libraries that its member libraries should not sign (or accept new or revised) agreements that include confidentiality or nondisclosure clauses. CUL will share upon request information contained in these agreements (save for trade secrets or proprietary technical details).
Most publishers find that non-disclosure agreements are not necessary. Among the numerous journal and ebook publishers and aggregators whose current contracts with us omit non-disclosure clauses are the American Institute of Physics (AIP), American Physical Society (APS), ASTM International, American Society for Microbiology (ASM), American Chemical Society (ACS), Bloomberg, Cambridge University Press, EBSCO, Elsevier, IEEE, Institute of Physics (IOP), Knovel, Oxford University Press, Proquest, Sage, SPIE, Taylor & Francis, and Wiley.
(Emphasis added. Citations omitted.)
See also Jennifer Howard's Cornell U. Library Takes a Stand With Journal Vendors: Prices Will Be Made Public, The Chronicle (subscription required). Hat tip to Media Law Prof Blog. [JH]
Now if only the top 200 law firms would stand together like Cornell and send the same message to their legal vendors!
Posted by: cookie Lewis, M.S.L.S. | Mar 24, 2011 10:29:09 AM
At Michigan Law Library, we have long told publishers that there is no effect to a non disclosure clause in our situation. We are a public university in a state with a strong FOIA statute and could not conceal the information except in very unusual circumstances that would not occur when we purchase/license access to information.
Kudos to Cornell. We are not victims until we agree we are.
-- Yes, Margaret. NDAs do not trump FOIA requests (when redacted). West has state FOIA-ed state and county sector Lexis Ks and LAW.GOV has federal FOIA-ed WEXIS Ks. Both vendors are well aware but NDAs in the private sector (including private IHE, but much more importantly law firms, corporate legal departments, etc.) is what matters to them because the private sector is the driving force in this market. -- Joe
Posted by: Margaret Leary | Mar 24, 2011 8:00:41 AM