26 Transfer or Acquisition of Titles

Desired Result

The goal of this section is to expressly state that, in the event a title is transferred between publishers, there will be minimal to zero interruption in access as a result of the transfer. Previously negotiated archival and/or perpetual access rights established with the transferring publisher should be honored by the receiving publisher.

What it means

Scholarly publishing has a long tradition of titles moving between publishers, raising legal issues when rights to previously licensed content may not be upheld during and after the transfer. This section establishes expectations for users and desired outcomes, emphasizing value for money and ensuring continued access to archival content. To achieve these goals, the clauses outline the obligations of the new publisher or owner and clarify responsibilities and standards for a smooth transfer. Key to meeting these objectives is crafting licensed rights that guarantee perpetual access, defining usage and access rights clearly, and establishing obligations to maintain continuity. These provisions should include notification of transfer, guidelines for transitioning access, and penalties if obligations are not met. For journal titles, the NISO Transfer Code of Practice (https://www.niso.org/standards-committees/transfer) provides industry best practices for transferring and receiving publishers.

Desired Language

Example clauses:

“Transfer or Acquisition of Titles. If any portion of the Licensed Materials is transferred to or acquired from another party, Licensor shall use best efforts to ensure that Licensee does not lose access to content subject to this Agreement as a result of the transfer or acquisition. Any archival and perpetual access rights that have been granted shall be honored, whether the Licensor is acting as the transferring or acquiring party. If Licensor is transferring any portion of the Licensed Materials to another party, Licensor will use best efforts to assign all rights and obligations to the assignee. If Licensor is acquiring works that become subject to this Agreement, Licensor will use best efforts to acquire the rights to perform under this Agreement, including but not limited to perpetual access rights. Licensor agrees to communicate with the party from which it is acquiring works to exchange such relevant payment and rights information. For journal titles, Licensor will comply with the NISO Transfer Code of Practice (https://www.niso.org/standards-committees/transfer).” (CDL Model License 2016)

Tricks & Traps

The trap is assuming that licensors will automatically adhere to these standards. In reality, without a proactive licensor, the responsibility of ensuring continued access and preservation of rights often falls on the licensee. To avoid this, it is crucial to include specific language in the agreement, such as “Licensor shall use best efforts to ensure Licensee does not lose access.” This establishes a clear benchmark for the licensor’s obligations and provides a framework for holding all parties accountable, ensuring the licensee’s rights are protected.

An additional trap lies in the potential for miscommunication or lack of transparency during the transfer process, which can further complicate the licensee’s efforts to ensure uninterrupted access and preservation of rights. Therefore, it is crucial for licensees to proactively engage with both the transferring and receiving publishers to verify compliance with terms and to address any issues promptly.

A trick to managing the transfer of journal titles is leveraging the resources provided by NISO (National Information Standards Organization), such as databases, mailing lists, and other services. These tools help stakeholders identify which titles are affected and understand what actions they can take to influence compliance. For more information, visit the NISO Transfer Code of Practice at (https://www.niso.org/standards-committees/transfer). KBART (“Knowledge Bases and Related Tools”) is also a NISO Recommended Practice which facilitates the transfer of holdings metadata between parties. For more information, visit NISO’s KBART recommendations at (https://www.niso.org/standards-committees/kbart).

Additional complications can arise when an institution changes the purchasing model of their subscription, for example by moving into or out of a “big deal” or database model, where the subscription is set to “everything published” rather than identified by a specific title list. It is important for the institution to maintain a clear title list for each year of a “big deal” subscription, as it is surprisingly uncommon for vendors to provide this by default. Institutions may need to provide historical title list information and tracking when titles enter or leave a “big deal” model for tracking future perpetual access rights.

Importance & Risk

The importance of these terms lies in ensuring continuous access and safeguarding archival and perpetual access rights. The risk of losing these rights can be mitigated through clear, transparent management that proactively monitors compliance and addresses any issues that arise during and after the transfer.