University of Alberta Library Statement of Principle on Non-disclosure Clauses in Licenses

September 9, 2014

To promote openness and fairness among libraries that license scholarly resources, the University of Alberta Library (UAL) will no longer enter into vendor contracts that require non-disclosure of pricing information or other information that does not constitute a trade secret. All new and renewed licenses submitted with non-disclosure or confidentiality clauses will not be signed but henceforth will be referred to the Office of the Vice-Provost (Learning Services) and Chief Librarian, for final decision.

Background and Rationale

Many electronic resources provided to the University community via libraries require a license that governs the terms of use of the product. Some publishers will request that the UAL 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 UAL can no longer accept.

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 non-disclosure clauses that prevent libraries from revealing pricing and other terms. This 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 “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 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. An open market will result in better licensing terms.

Non-disclosure agreements conflict with the needs of UAL librarians and staff to work openly, collaboratively, and transparently. This conflict increases the likelihood that the terms of a non-disclosure agreement would be inadvertently violated, posing a threat to the University.

UAL endorses the position of the Association of Research Libraries (Blixrud, 2009), that its member libraries should not sign (or accept new or revised) agreements that include confidentiality or non-disclosure clauses. UAL 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 are largely taken from Cornell University Library’s Position on Nondisclosure Clauses in Licenses, with thanks for their permission to reuse and 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): 9425-9430. doi: 10.1073/pnas.1403006111

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

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).

Approved by the Collection Development Committee, and Senior Leadership Team.