RE: Foreign Copyright

[Donald Taylor <donald.taylor@techbc.ca>]

Ros,

An important issue in this instance is the licence aspect.  A licence, as
we know, isn't the same as ownership, hence the publisher can make demands
that would be unnaceptable if the library "owned" the item.  The US
publisher in question is stating how copies are to be made, and is using
Section 108 of the US Copyright Act and CONTU guidelines as the prescribed
method.  The publisher is not making the customer subject to US law, it is
only using a US law to describe how copies are to be made.  If you break
the licence, publisher would prosecute you in British courts, using the
applicable British laws - unless something in the licence states the
contrary.

As for hardcopy, most of the world's nations (including UK and USA) are
part of the Berne Convention that stipulates that a country treat the
works of foreign authors the same as it treats its own - otherwise known
as "national treatment."  That is, foreign publications in the UK fall
under UK copyright law, and any breach of copyright would be fought in UK
courts. 
http://www.wipo.int/eng/general/copyrght/bern.htm 
Also see the WIPO Copyright Treaty
http://www.wipo.int/eng/diplconf/distrib/94dc.htm

At the Technical University of British Columbia, when faced with a licence
that states that we must do something according to some US Law (or other
foreign state's legislation), we don't worry about it as we are signing a
licence - not signing over legal jurisdiction.  The law quoted simply
prescribes how we are to do something, although it would make it easier if
the publisher would spell it out in the licence itself.  Of course, if it
were a law we were not familiar with, then we would check it out first to
ensure that we know what we are getting into.

I would be very surprised if a publisher would go along with the suggested
clause from the European Bureau of Library and Documentation Associations.  
The advantage of a licence to the publisher is the ability to retain
tighter control over their published materials than would normally be the
case under "applicable national Copyright Law."

I hope this helps,
Don Taylor

Donald Taylor
Librarian (Reference and Collection Development)
Information Resources and Digital Library, 
Technical University of British Columbia	
2400 Surrey Place. Surrey, BC, Canada  V3T 2W1
Phone: 604-586-6017
Fax: 604-586-6025
E-mail: taylor@techbc.ca




-----Original Message-----
From: M Ros Doig [mailto:M.R.Doig@derby.ac.uk]
Sent: Monday, June 18, 2001 2:37 PM
To: liblicense-l@lists.yale.edu
Subject: Foreign Copyright

Dear All

What is the position regarding copyright in resources that are used in
countries other than the country of origin? Case in point:- I have a
licence for a certain US publisher's electronic journals. This clause
appears in the licence -

6.    Inter-library Loan

Institutions may use hard or electronic copies derived directly or
indirectly from the electronic edition of the publications for the purpose
of inter-library loan with the same limitations that apply to paper copies
for that purpose made from the print edition of the journals.
Specifically, copies must be made in compliance with Section 108 of the
Copyright Act of the U.S. and with guidelines developed by the National
Commission on New Technological Uses of Copyrighted Works (CONTU
Guidelines), the text of which is available as part of U.S. Copyright
Office Circular 21.

Now I'm in England and not subject to US law. I have offered to strike the
clause through on the grounds that we don't currently use our e-journals
for ILL but this is unaccepetable.

So what's the answer to this dilemma? I presume if I sign with the clause
intact any subsequent breach of copyright would have to be dealt with in
the States. Can I include a clause that says I undertake not to use the
e-versions for ILL?

I also wonder what the copyright position actually is with regard to
foreign hard copy publications. If copyright was breached in this country
(England) and the foreign publisher decided to go for litigation , under
who's jurisdiction would the case be fought?

And if I sign to say we won't use the e-versions where does that leave us
with regard to paper copies? I have a booklet here called 'Licensing
Digital Resources' published by the European Bureau of Library and
Documentation Associations. It suggests inserting a clause that says 'For
the avoidance of doubt nothing in this licence shall in any way exclude,
modify or affect any statutory rights which may from time to time be
granted to libraries and their users under the applicable national
Copyright Law.'

Would this help in this instance supposing it was acceptable (which I
doubt!)? How do you folks in the US deal with such clauses that restrict
to other countries' copyright laws? Any comments appreciated. Thanks

Ros Doig
Serials & Inter-lending Librarian
University of Derby
Learning Centre
Kedleston Road
Derby DE22 1GB

Tel. +44 1332 591204 
Fax. +44 1332 597773
Email M.R.Doig@Derby .ac.uk