Statement of principle on nondisclosure clauses in licenses

York University Libraries
May 2015

To promote openness and fairness among libraries that license scholarly resources, the York University Libraries (YUL) will no longer 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 or confidentiality clauses will not be signed but henceforth will be referred to the University Librarian for a final decision.

Background and Rationale

Electronic resources provided to university communities via libraries often require a license that governs the terms of use of the product. Some publishers and consortial agencies will request that libraries treat the subscription price as confidential information and not disclose it to third parties. In the past, many libraries including YUL have tolerated these clauses in the belief that they might result in a lower cost. YUL can no longer accept this position.

A recent study by Bergstrom et al. (2014) illustrates that information related to the cost of large bundled journal packages is rarely publicly available due to non­disclosure clauses that prevent libraries from revealing pricing and other terms. This practice has resulted in wide price discrepancies that point simply to successful bargaining, as opposed to concrete factors such as student enrollment numbers. As Darnton (2010) has noted, by “keeping the terms secret, … one library cannot negotiate for cheaper rates by citing an advantage obtained by another library.” The International Coalition of Library Consortia (2004) states that “Non­disclosure 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 freely 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. Transparency will result in better licensing terms, or at least allow libraries to negotiate with vendors in a more informed manner. Moreover, as a public institution we are conscious of our duty to shepherd public funds. In the spirit of free and open exchange of information, the Libraries also make available a manifest of its spending supporting open access article processing charges.

Non­disclosure agreements conflict with the needs of YUL 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.

YUL endorses the position of the Association of Research Libraries (Blixrud, 2009) and the Canadian Association of Research Libraries (CARL 2010), that its member libraries should not sign (or accept new or revised) agreements that include confidentiality or nondisclosure clauses. In addition, YUL supports the omission of non­disclosure clauses in consortial arrangements, such as those negotiated by CRKN and OCUL, and encourages these consortial bodies to negotiate with vendors and publishers to that effect. Further, YUL will share upon request information contained in these agreements (save for trade secrets or proprietary technical details).

**This Statement of Principle and its Background and Rationale is largely taken from “Cornell University Library’s Position on Nondisclosure Clauses in Licenses.” Additional content comes from the “University of Alberta Libraries Statement of Principle on NonDisclosure Clauses in Licenses.” YUL thanks both institutions for their permission to reuse and to adapt.

References

Bergstrom, T. C., Courant, P. N., McAfee, R. P., & Williams, M. A. (2014). Evaluating big deal journal bundles. Proceedings of the National Academy of Sciences of the United States of America, 111(26): 9425­9430. doi: 10.1073/pnas.1403006111

Blixrud, J. (2009). ARL encourages members to refrain from signing nondisclosure or confidentiality clauses. ARL News (June 5).

CARL (Canadian Association of Research Libraries) (2010).  Non­disclosure clauses. Principles.

Darnton, R. (2010) The library: Three jeremiads. New York Review of Books, 57(20).

International Coalition of Library Consortia (ICOLC). (2004). Statement of current perspective and preferred practices for selection and purchase of electronic information (Update No. 2, Pricing and Economics).