Re: Nature Contract Provisions

[David Goodman <dgoodman@Princeton.EDU>]

I have a few, compiled with the assistance of some of my colleagues:

2.3 The users own lawfully made copies. 
They may not own the copyright, but they own the physical copies. As
written, if I make a printout of an article for personal use, Nature
owns it. 

3.b except in accordance with the fair use provisions of the appropriate
National copyright act, including non-commercial interlibrary loan. (The
provider may require that this material not be transmitted in direct
digital form.)

3.c may not make available ON PUBLICLY ACCESSIBLE... . Obviously we need
the right to make  material available on our own institutional web
sites, if limited to authorized users.

4.3
Especially in connection with 4.5 , this means we can los all access we
have previous had at any time at the whim of the supplier.

4.5 
Not just this, but in purchasing the electronic version of a journal we
are purchasing the journal, by which in this case we mean the right to
use the journal for all time to come. We are not interesting in
purchasing revocable transient access to a journal--we are purchasing
the content. Not merely must the supplier not require us to return what
we've bought, but he must guarantee to continue to supply the portion we
have purchased,  indefinitely, in the same form we've purchased it,
under reasonable terms. 

Since business enterprises are transient, this must include the guarantee
that he will not transfer or sell the content in such a way as to impair
access, and the guarantee that if he is unable or unwilling to maintain
access he will transfer the rights and the material to some suitable
non-profit organization.

4.6 "may suspend if he believes ..." is much to broad. At the very
least, "may suspend if he reasonably believes"; better, "may suspend if
he can prove..."

5.3 No library can warrant the number of staff the university employs. A
library can furnish what it believes in good faith to be the number of
staff. if the supplier can demonstrate an error, it has the right to
receive payment for the difference.

6.2 I think it would be enough to change it to " reasonable measures to
ensure...."

6.5 the supplier is not entitled to monitor the use in any way that will
identify individual users or infringe user privacy, or install software
on any portion of our computer network.  He is entitled to our
cooperation in identifying seriously infringing users. The supplier must
collect or attempt to collect no data identifying  individual users
except  with their individual permission after full disclosure. 

7.4d 50 hours out of 1000 is about 2 days/month. I would suggest 2 days
per year as a more reasonable downtime limit. 

7.8 First of all, we want statistics on a monthly basis, not a yearly
basis. Second, we want figures that show the use of individual articles.  
Most important, the statistics, on a aggregated basis for the university,
must be able to be used by the purchasing library as it pleases, but not
by the supplier without the permission of the library. Is Nature really
afraid that its use figures will be too low to publicize?

10.1 "death" ? What is the publisher thinking of? Was this license
prepared for a journal or a piece of machinery?

12. Obviously, this provision is unenforceable against any US public
institution.

I doubt that this list as combined with rick's is exhaustive, and urge
colleagues to examine the contract for additional problems. 

David Goodman
Biology Librarian
and Co-chair, Electronic Journals Task force
Princeton University Library
Princeton, NJ 08544-0001
phone: 609-258-3235
fax: 609-258-2627
e-mail: dgoodman@princeton.edu
___

Rick Anderson wrote:

> I reviewed the Nature license yesterday in preparation for our buy-in, and
> sent the following objections and proposed fixes to our sales rep.  I
> append them here in case anyone else is interested in seeing which terms
> we found problematic and how we proposed to fix them:
> 
> ---
> 
> 4.5 -- This has to come out.  There's no possible way we could promise to
> destroy all copies of all licensed material upon termination of the
> contract.  We have 13,000 students and faculty here in any given year, and
> there's no telling how many of them will have articles or citations stored
> on floppies, zips or hard drives.
> 
> 6.2 -- Similarly, there is no such thing as a "reasonable procedure to
> monitor the compliance with the terms and conditions of this Agreement by
> Authorized Users."  What we can do (and agree to do elsewhere in the
> license) is control who uses it and do our best to inform them of the
> terms. After that, there's no reasonable way for us to monitor or control
> their behavior.  We do, of course, agree to help out if you or we notice
> an abuse. This is just a risk you guys have to take in return for the
> convenience of selling your product to 13,000 people with a single
> institutional sale.
> 
> 7.5 -- The language here is way too broad.  As your customer, it's not our
> job to "safeguard the intellectual property, confidential information and
> proprietary rights" of Nature.  It's our job to give you our money and
> abide by the license terms.  If you want us to safeguard one of your
> interests or rights, it's got to be specifically delineated in the
> license; as it is, this language constitutes a legal blank check.
> 
> 7.7 -- Please add this sentence: "If Licensee deems any such change to be
> unacceptable, Licensee may terminate this Agreement and shall be entitled
> to a refund pro rated to the term remaining."  (Otherwise, it's another
> blank-check situation: we've paid our money, but have no guarantee that
> Nature Online won't, say, go back to the embargo or decide to only provide
> selected articles.)
> 
> 11. VARIATION -- Modifications in the Agreement itself (as opposed to the
> content of the site) have to be agreed to in writing by both parties.
> This is a contract, so we need to treat it as such.  It would be kind of
> silly for us to sign a contract that says you guys can unilaterally alter
> it after the fact.
> 
> 12. GOVERNING LAW -- This has to be taken out or changed to read "Nevada"
> and "Washoe County" wherever it says "New York" and "New York County."
> We're a state institution and have no leeway on this.  (Taking it out is
> perfectly fine by us.)
> 
> -------------
> Rick Anderson
> Electronic Resources/Serials Coordinator
> The University Libraries
> University of Nevada, Reno
> 1664 No. Virginia St.
> Reno, NV  89557
> PH  (775) 784-6500 x273
> FX  (775) 784-1328
> rickand@unr.edu