Re: Negotiating

["Anthony Watkinson" <anthony.watkinson@btinternet.com>]

I agree with David in principle. There are often two sets of lawyers in
the background taking extreme positions and the publisher usually has its
lawyers more under control i.e. it is easier for a publisher to change
terms than it is for a state university where the state attorney has much
more power. However as a publisher I would want to hold on to the right to
remove material if I thought it was (for example) defamatory rather than
having spend money getting a court judgement or just a judgement by a
lawyer.

Anthony Watkinson
14, Park Street,
Bladon
Woodstock
Oxfordshire
England OX20 1RW
phone +44 1993 811561 and fax +44 1993  810067

----- Original Message -----
From: "David Goodman" <dgoodman@phoenix.Princeton.EDU>
To: "Liblicense-L@Lists. Yale. Edu" <liblicense-l@lists.yale.edu>
Sent: Wednesday, May 29, 2002 11:31 PM
Subject: Re: Negotiating

> I, for one, would much prefer it if the legal doctrine were that fair use
> supersedes contract provisions involving intellectual property, on grounds
> of public policy. However, that does not appear to be the case, and the
> present legal and political climate does not seem to be changing in that
> direction.
>
> Therefore, Tom, you are right that we should use our negotiating power
> more, rather than just surrender. Many of the the license terms we now see
> routinely are much better than those we saw a few years ago. This is
> partly due to the efforts of this list and its moderator in raising
> awareness and providing models, but also to our individual insistence on
> them. An excellent example is ILL; not every publisher permits it even
> now, but at first none of them did. They changed because we kept
> insisting. Change is even easier for matters that are just standardized
> terms about very improbable contingencies.
>
> I suggest changing every contract that has undesirable terms to read the
> way one thinks it should, and send it back to the publisher. The publisher
> will usually reply that most of the changes aren't acceptable. Sign
> anyway, unless it's really intolerable, but the point has been made.
>
> For example, I suggest adding the clause in appropriate cases, that: "The
> publisher warrants that in case some other party owns the copyright, the
> publisher possesses the irrevocable right to the permanent distribution of
> the material purchased."
>
> I also suggest always adding:
>
> "The publisher warrants that it will not remove material from the site
> except if legally required by a court of competent jurisdiction."
>
> It will probably be a while until provisions such as this become standard,
> but they will never become standard if we don't ask.  I have seen similar
> terms on some contracts, and I commend the publishers that are attempting
> to meet the need these terms express--even if their current wording is
> less strong than I think desirable. (As is probably obvious, I am not a
> lawyer, and suggestions for more effective language are welcome.)
>
> My personal view only, as always,
>
> David Goodman
> Research Librarian and
> Biological Sciences Bibliographer
> Princeton University Library
> dgoodman@princeton.edu            609-258-7785