Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
  1. Home
  2. Browse subjects
  3. Law
  4. Intellectual Property
  5. Content listing

Refine search

Refine search

Access:
Content type:
Publication date:
Apply   From and To filters
Subject: Show more
Journals Show more
Publishers: Show more
Societies Show more
Series: Show more
Collections: Show more

Actions for selected content:

Select all | Deselect all
  • View selected items
  • Export citations
  • Download PDF (zip)
  • Save to Kindle
  • Save to Dropbox
  • Save to Google Drive

Save Search

You can save your searches here and later view and run them again in "My saved searches".

Please provide a title, maximum of 40 characters.
Cancel
×

5232 results in Intellectual Property

Page 243 of 262

  • 2 - The contract

  • Fiona Durrant
  • Book:
    Negotiating Licences for Digital Resources
    Published by:
    Facet
    Published online:
    08 June 2018
    Print publication:
    28 February 2006, pp 37-60

  • Summary

    This chapter cannot offer legal advice or interpretation as the author is not a lawyer.

    The purpose of this chapter is to make the subscribing negotiator feel more comfortable about the contract, to examine what are the key sections of the contract and to explain some of the jargon. It also aims to emphasize that money is only one aspect of the negotiation process. It may also prove useful to a publisher or representative who is familiar with sales but new to dealing with contracts for electronic resources.

    Depending on the size of the publisher, they may have their own inhouse legal team to draft the contract. Some smaller publishers may have paid an outside firm to compile the contract. Being aware of this can help the subscribing organization understand how easy it would be for the publisher to amend the terms of the contract if that were what was needed. Some organizations prefer to use standard contracts for all their products, ranging from software and outsourced cleaning contracts to plant maintenance and online subscriptions.

    Often the contract does not need any alterations to suit the particular needs of the subscribing organization, but sometimes a few tweaks are desirable, if only to seek clarification. There is no need to make the exploration of contract issues any more complicated than it needs to be. Often the addendum to the contract of an e-mail communication between the organization and the representative is sufficient.

    The aims of the contract

    A contract is put in place to protect the interests of the publisher, the content owner and the purchaser. It is a document that clearly sets out what is allowed and what are the obligations of all parties concerned. To the inexperienced negotiator contracts might appear to be designed to baffle and confuse, although this is rarely their intention. Some contracts have won awards for the clarity of their wording; unfortunately many have not. The contract is a legal document and it usually mentions under which jurisdiction it falls should there be any disputes. Disputes are rare, and by ironing out any queries, misunderstandings or poor drafting, disputes will be highly unlikely.

  • Appendix 2 - Negotiation timeline

  • Fiona Durrant
  • Book:
    Negotiating Licences for Digital Resources
    Published by:
    Facet
    Published online:
    08 June 2018
    Print publication:
    28 February 2006, pp 139-142

  • Summary

    When an organization decides to carry out a particular stage of the negotiation process will depend on a number of factors. These are explored below.

    Contract length

    Typically a contract is for one year, but more commonly longer contracts are agreed, especially by consortia. Short contract periods of six months or less often make the process feel like a treadmill. A contract of several years will allow for more flexibility and give the negotiators some time to build up a relationship other than one based on contract terms and prices.

    Cancellation terms

    The cancellation terms in a contract may determine by when a subscribing organization needs to be having serious discussions with the publisher so that they are not in a position where they are obliged to renew, even if ceasing to subscribe is not seen as an option. As mentioned in Chapter 1 on ‘Preparation’, when there is a specification in the contract about when the subscriber has to notify the publisher if they wish to cancel, one way around this is to write a letter reserving the right to cancel.

    Human resources

    In all teams, regardless of size, there are many pressures other than just negotiation. Some organizations have teams dedicated to procurement, but even these will have issues of staff holidays, sickness or maternity leave. It is important to realize that such events cannot always be predicted so make sure you allow a ‘cushion’ of time, say of a few weeks, to take account of such staffing issues when planning your negotiation schedule.

    Other renewals

    Some subscriber organizations actually like all their subscriptions to renew at the same time for the sake of consistency, some like to stagger them so that renewals and costs are spread out over the course of a year. Where there are other products due for renewal at a similar time, one or more renewal discussions may need to be bought forward.

    Budgetary data

    Organizations manage their budgets in different ways, ranging from guestimates to figures based on actual negotiated prices. Other examples of budgetary planning include raising the amount by an agreed percentage or sum of money. If there is a need for a budget to be accurate and as close to what is going to be spent as possible, then negotiations may well need to be carried out quite far in advance.

  • 3 - Negotiation

  • Fiona Durrant
  • Book:
    Negotiating Licences for Digital Resources
    Published by:
    Facet
    Published online:
    08 June 2018
    Print publication:
    28 February 2006, pp 61-118

  • Summary

    The actual negotiation is the stage most feared by many representatives and information professionals alike. The aim of this book is to take away any fear and to provide confidence through examples, practical tips and more detailed analysis. In this chapter, the issues of how to broach the subject of the renewal, how to discuss money and terms and how to ‘close the deal’ are all explored. The negotiation can be done during any phase of the subscription. There may be reasons for holding a negotiation early, such as needing precise figures for a budget submission. It may be that a price is agreed well ahead of time, with confirmation about the renewal going ahead coming later. The ideal situation is one where neither party is feeling pressured by time so that they can concentrate on their real objectives.

    The purpose of the negotiation is to serve your interests. The objective will have been decided as part of the preparation process. Before you enter negotiations, know your Most Favoured Position (MFP), Walk Away Position (WAP) and the Best Alternative to a Negotiated Agreement (BATNA).

    Successful negotiation is not about one side stating their position, the other side moving a bit, then going back and forth in painful steps. This is slow, can damage the relationship between publisher and subscriber and involves the concept of ‘giving in’. The most common example of this is bartering; it is not negotiation at its best. This sort of bartering manages to get across the message that one wants a cheap price, the other a high price. Talks can break down if this method is used exclusively, as it is based on positions that at some point become immovable and pays little attention to other things that may ameliorate the situation. For example, if only the price is discussed, this ignores issues such as frequency of payment, numbers of users and alternative subscription models. What gets ignored are the fundamental concerns of the parties involved.

  • Appendix 1 - Frequently asked questions

  • Fiona Durrant
  • Book:
    Negotiating Licences for Digital Resources
    Published by:
    Facet
    Published online:
    08 June 2018
    Print publication:
    28 February 2006, pp 133-138

  • Summary

    The questions that follow are ones that I have come across either during training sessions, informal chats, or in response to real negotiation situations. The answers are suggestions; there may well be alternatives in either approach or solution.

    SQ = Subscriber question

    PQ = Publisher question

    SQ: What if the publisher, after numerous attempts, won't negotiate on the price?

    A: Use the following checklist:

  • • What are your WAP and your BATNA?

  • • Are the publishers prepared to make concessions on aspects other than the price?

  • • If desirable, can a deal be done for future years to mitigate the price increase in the long term?

  • • If the publisher will not negotiate on price or other terms, point out to them that without some movement on their part this is not negotiation and that you are prepared to offer concessions. Use the ideas about how to get someone to the negotiation table (see Chapter 3, pp.115–17).

  • • Consider where complaints about unfair pricing can be taken, such as an industry body or professional association.

  • • Consider whether the resource can be negotiated by a consortium.

    • PQ: Why can't you just pay what we ask without causing a fuss? It would make life so much easier.

    A: Subscribers are prepared to pay what is asked without a fuss when the price and terms are fair.

    SQ: We are small fry, why would the publisher bother negotiating with us?

    A: Because you ask. Refer to the section on David and Goliath situations in Chapter 3 (pp. 113–15).

    SQ: What are our chances of getting terms in a contract changed?

    A: Getting contract terms changed depends on a number of factors. These include:

  • • whether the publisher is the owner or just the re-seller of the content. In the latter situation, where the publisher might be an aggregator, they will probably have separately negotiated terms with a large number of content owners and changing some contract terms may therefore be a logistical nightmare for the publisher.

  • • whether the contract is based on a winning tender where specific contract terms were specified.

  • • whether a consortium is negotiating the contract terms.

Negotiating Licences for Digital Resources
  • Fiona Durrant
  • Published by:
    Facet
    Published online:
    08 June 2018
    Print publication:
    28 February 2006
  • With the increasing availability of digital resources, it is vital for those involved in purchasing them to get to grips with the complexities of contracts, costs and the relationships that exist between subscriber and publisher. "Negotiating Licences for Digital Resources" is a practical guide on how to get the best deal for online subscriptions. The processes outlined in this book can be applied to a wide range of electronic products, ranging from e-journals to multi-modular databases. There are practical tips and guidance on what to focus on during the course of the negotiation and, most importantly, what preparation is needed to ensure that you gather the necessary amount of information to achieve the best outcome. The text guides you logically through the stages of negotiation, from initial awareness of your organization's needs to making the contract more understandable, and offers advice on the skills and techniques of negotiation, whether in written or face-to-face scenarios. This book can act as a reference tool for experienced negotiators, or as a primer for those who have never before been involved in the process. It is essential reading for information professionals, knowledge managers, online resource buyers and procurement officers across all sectors, and will also be of interest to publishers, e-journal agents and vendors of online resources.

  • 4 - Staff development and communicating negotiation outcome

  • Fiona Durrant
  • Book:
    Negotiating Licences for Digital Resources
    Published by:
    Facet
    Published online:
    08 June 2018
    Print publication:
    28 February 2006, pp 119-126

  • Summary

    This chapter is more relevant to the larger organization than to the sole trader or small organization. It aims to show how negotiation can play a key role in the continuing professional development of staff and ensure that the negotiator keeps a high profile within the firm. It also covers what to do once the negotiation has finished, who to keep informed and what information to record.

    Staff development

    As we have seen in previous chapters there are many skills involved in the negotiation process. As most managers know, it is good both to draw on existing skills and to encourage fledgling or new skills to ensure a well rounded team. Many people will be familiar with the concepts of Dr Meredith Belbin, who researched for many years what made a successful team. He identified the key roles that contributed to a successful team:

  • • action-oriented roles — Shaper, Implementer and Completer Finisher

  • • people-oriented roles — Co-ordinator, Teamworker and Resource Investigator

  • • cerebral roles — Plant, Monitor Evaluator and Specialist

    • Highlighted in Table 4.1 are the types of characteristic that you might find in a negotiator. These characteristics exist in many key roles that are needed in a team. According to Belbin, we usually find a role in which we are most comfortable, but we also have a ‘back-up’ role that we end up slotting into should this role be lacking in the team. Involving individuals in the negotiation process can help to develop additional skills for the benefit of individuals themselves and of the team.

    It is essential that the key negotiator assigns the tasks clearly and puts them into context so that the individual has the chance to use their initiative should the opportunity arise. Tasks and roles that can be assigned include:

  • • research into the availability of alternative products

  • • management of trials of alternative or new products

  • • research into publicly available feedback on a product or selection of products

  • • conducting mini-interviews with end-users

  • • compiling a mini-survey for end-users

  • • being in charge of a particular group of communications, such as letters reserving the right to cancel

  • • reading the contract, maybe focusing on a particular section such as permissions and feeding back to the key negotiator any queries they have

  • • attending a meeting to provide information as an end-user.

  • 1 - Preparation

  • Fiona Durrant
  • Book:
    Negotiating Licences for Digital Resources
    Published by:
    Facet
    Published online:
    08 June 2018
    Print publication:
    28 February 2006, pp 1-36

  • Summary

    What are the organization's needs?

    There is a very strong argument to support the claim that an organization needs a skilled information professional in order to get it the best deals for online databases on the best terms at the best prices. This information professional ideally needs to be close to the management structure in order to do the best job, so as to get the best understanding of the organization's needs. Depending on the size of the organization, this role may be just one strand of a person's job, or it may be undertaken by people dedicated solely to doing negotiation.

    Information professionals are increasingly being involved in the decisionmaking process of the organizations in which they work. Negotiation is just one of the reasons why, ideally, an information professional should have a core understanding of the direction in which the organization is going and how it functions on a day-to-day basis. Some organizations are more open with their employees about what they do and how they do it, whereas in other organizations the information that people need prior to a negotiation taking place may not be freely available to all. Of course the more open environment is the best option, and that is the scenario we have assumed to exist in this chapter. Explaining the importance of negotiation to the management can promote an information professional to a role where they are more involved in organization-wide decision-making.

    A professional person's time is valuable. This commodity of time needs to be taken into account fully at the absolute outset of any negotiation. It may be concluded that a small, low-cost subscription is not worth the effort and time of negotiation. A low-value subscription may benefit from just a ‘quick try’ rather than a detailed course of communications. For example, a single subscription with a list price of £50 might be more aptly ‘left alone’ as any gains from negotiation would be outweighed by the time spent, or time spent might be better applied to subscriptions over a defined value. What this ‘defined value’ is remains up to each organization. Having a cut-off point means that human resources can be applied to the deals that need the most amount of time and energy.

  • 6 - Conclusions

  • Huw Beverley-Smith, Ansgar Ohly, Universität Bayreuth, Germany, Agnes Lucas-Schloetter, Ludwig-Maximilians-Universität Munchen
  • Book:
    Privacy, Property and Personality
    Published online:
    04 July 2009
    Print publication:
    24 November 2005, pp 206-226

  • Summary

    Introduction

    Commercial appropriation of personality has generally been approached from two basic perspectives in the major common law and civil law jurisdictions analysed in the preceding chapters: (i) the unfair competition or intellectual property perspective aligning the problem most closely with the common forms of intellectual property rights such as patents, copyright and trade marks and (ii) the privacy and personality perspective, focusing on the damage to human dignity. The differences in substantive legal protection examined in the preceding chapters remain quite significant and a number of legal concepts have been employed to address the same basic problem. Despite these differences, a surprising number of common trends may be identified from the discussions of the individual systems. This chapter draws together some of the common features and patterns of development that emerge from the individual systems. While the developments have at times been systematic, they have more often been rather more haphazard, although they may be distilled into three basic models. These basic models inevitably attempt to reconcile the economic and non-economic aspects of personality, which often conflict in the development of intellectual property rights in aspects of personality. This is a problem that pervades the analysis in the preceding chapters and is summarised in a subsequent section. Finally, we examine the effects of European human rights law both in raising the threshold of protection for privacy interests and in marking the boundaries, which are often difficult to identify, between privacy and freedom of expression.

  • 5 - French law

  • Huw Beverley-Smith, Ansgar Ohly, Universität Bayreuth, Germany, Agnes Lucas-Schloetter, Ludwig-Maximilians-Universität Munchen
  • Book:
    Privacy, Property and Personality
    Published online:
    04 July 2009
    Print publication:
    24 November 2005, pp 147-205

  • Summary

    Framework and history

    The term ‘privacy’ used in the common law literature corresponds in France to the topic of ‘protection of the personality’ or ‘rights of personality’. This concept is relatively new in French legal history, since it appeared only in the second half of the nineteenth century. Indeed, the French civil code, or Code Napoléon of 1804, does not contain any provision concerning the protection of the personality. Rather, the most important theme of the Code civil is ‘property’, even if it has a philosophical connotation stemming directly from the natural rights doctrine.

    As early as the middle of the nineteenth century, the reproduction of a person's likeness began to attract the attention of jurists and was soon considered to be the subject of an exclusive right, the exact nature of which remains, however, unclear. The judicial decision in the Rachel case, concerning a famous actress who was portrayed on her deathbed, is seen as the birth of the right to one's image in France. In this judgment, dated 16 June 1858, the civil court stated that

    no one may, without the express consent of the family, reproduce and make available to the public the features of a person on his deathbed, however famous this person has been and however public his acts during his life have been; the right to oppose this reproduction is absolute; it flows from the respect the family's pain commands and it should not be disregarded; otherwise the most intimate and respectable feelings would be offended.

  • 3 - Privacy and personality in the common law systems

  • Huw Beverley-Smith, Ansgar Ohly, Universität Bayreuth, Germany, Agnes Lucas-Schloetter, Ludwig-Maximilians-Universität Munchen
  • Book:
    Privacy, Property and Personality
    Published online:
    04 July 2009
    Print publication:
    24 November 2005, pp 47-93

  • Summary

    Introduction

    Four predominant approaches to problems of invasions of privacy may be identified. First, the adjustment of existing causes of action to cover invasions of privacy. The traditional common law approach has involved stretching statutory provisions and well-established torts such as defamation, trespass and the action for breach of confidence to embrace interests in privacy. Second, the piecemeal addition of new causes of action, either by reference to the circumstances in which liability is imposed (e.g., harassment or appropriation of personality) or by explicitly labelling them as invasions of privacy. A number of common law jurisdictions have adopted this piecemeal approach. Property and reputation remain the primary protected interest, and protection for other interests is parasitic. Third, a general remedy declaring that, in principle, every invasion of privacy is actionable, subject to necessary qualifications limiting recovery: this might be non-exhaustive, leaving the terms and scope open-ended or exhaustive, defining the terms and circumstances for recovery comprehensively. Fourth, the declaration that every person has a right to privacy in a general and open-ended way, without specifying the circumstances in which privacy can be invaded. English law has traditionally been reluctant to develop beyond the first two approaches. In the United States, the casuistic approach was abandoned in favour of a general remedy for invasion of privacy, cast rather unusually in rights based terminology. This is an approach which other common law systems have, thus far, refused to adopt.

  • 2 - Property, personality and unfair competition in England and Wales, Australia and Canada

  • Huw Beverley-Smith, Ansgar Ohly, Universität Bayreuth, Germany, Agnes Lucas-Schloetter, Ludwig-Maximilians-Universität Munchen
  • Book:
    Privacy, Property and Personality
    Published online:
    04 July 2009
    Print publication:
    24 November 2005, pp 13-46

  • Summary

    Introduction

    Within the common law systems, the phrase ‘unfair competition’ is often used in three distinct ways: in the broadest sense, as a generic term to cover a wide range of legal and equitable causes of action dealing with unfair trading; as a synonym for the tort of passing off; and, finally, as a label for a general cause of action based on the misappropriation of valuable intangibles. The latter form of unfair competition emerged in the United States in the early part of the twentieth century, although it has been sparingly applied and has subsequently been confined, largely by the constitutional doctrine that federal statutory intellectual property rights such as copyright and patents are supreme and, in any conflict, pre-empt the application of state laws. Such a cause of action has been rejected by the English and Australian courts which refuse to protect ‘all the intangible elements of value … which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour’. Intellectual property rights are dealt ‘as special heads of protected interests and not under a wide generalization’. The crucial factor will be whether an intangible falls within one of the discrete recognised categories, rather than the fact that the intangible creation has some form of value.

Page 243 of 262