RE: restrictive license clause

["Donald Waters" <DJW@mellon.org>]

The clause that Ms. Carraway quotes is not itself a problem but, as others
have observed, it does point to the larger issue of "the vanishing article
syndrome," which has been discussed previously on this list.  The syndrome
cannot be addressed simply by deleting or altering the quoted clause,
which seems to me to serve merely an informational purpose.  The clause is
an honest and forthright admission of a publisher's legal obligation to
withdraw an item from their database under pressure of a suit.  It is an
admission of the very real vulnerability that publishers face on the
question of preserving the integrity of the scholarly and cultural record,
and it should serve as a clarion call for members of this list to
undertake a concerted effort in licensing activity to address the problem.  
However, as I suggest below, the action needs to take place on a slightly
different front from what Ms. Carraway's query initially suggests.
 
The vanishing article syndrome may not be a new issue for publishers, but
it is a relatively new and increasingly serious public policy issue for
the academy, for libraries who serve the academy, and for the general
public that claims to care about the integrity of the scholarly and
cultural record in published form.  To ask rhetorically, as Mr. Cox does,
who would want to persevere in providing access to offensive or unlawful
content misses this big point, and begs the question of what is offensive
or unlawful and to whom, and sets up a very slippery slope of risk
assessment, in which material may be removed not only because it IS
offensive or unlawful, but because it MAY be so in the judgment of
risk-averse lawyers or staff.  And as Jim O'Donnell pointed out a couple
of years ago when this topic was discussed on this list, it is a very
short ride farther down the slippery slope for publishers, self-archiving
authors, and others to alter or withdraw items simply because an idea is
proven wrong, has drifted out of favor, or has simply proven to be
embarrassing.
 
The real and very serious threat of the vanishing article is a symptom --
and unintended consequence -- of the massive ongoing shift from ownership
to licensing in the distribution of scholarly publications. The shift
means that libraries and the academy no longer physically control the
scholarly record that is the necessary basis of teaching and research.  
That control is slipping to publishers, many of which are commercial
organizations that have neither the mission nor the desire to assume
responsibility for long-term preservation -- and those publishers that do
have the desire need help from their library colleagues because, as the
quoted clause indicates so clearly, publishers do not have the legal
protections to sustain them in preservation for the long term. However,
those libraries who do have a preservation mission and, under copyright
law, special protections for preservation activities, now no longer have
possession of the content.

As a result, libraries and publishers who have forged a licensing regime
that generally provides great value to the scholarly community, still have
urgent work to do together to ensure that the integrity of the scholarly
and cultural record can be appropriately shielded from attempts -- for
good or bad reasons -- to "vanish" a publication.
 
What could be done within the licensing regime to address the vanishing
article syndrome?  Both libraries and publishers must act together, but
because publishers are so vulnerable and libraries have both the mission
and public trust to preserve the scholarly and cultural record, it is the
libraries that must take the lead -- and soon.  Libraries can and must
demand that, as a matter of contract, scholarly publications that are
generally available by license are deposited immediately, diligently, and
systematically in trusted third party archives.  Only if publications are
moved outside of publisher's databases for archival purposes do we have a
chance of protecting the integrity of the record against attempts at
removal.  Libraries need to evaluate which form of archiving solution is
suitable for which publications, and the demand must be real.  In other
words, libraries must be willing to withhold payment until the publisher
agrees to the deposit, and they need to help fund the archives.  There are
archiving solutions, which include LOCKSS (http://lockss.stanford.edu/),
Portico (http://www.portico.org/), and others, and there are emerging
standards for identifying trusted archives
(http://www.rlg.org/en/page.php?Page_ID=580).

Through the licensing process, libraries and publishers have a central,
active role to play in mitigating the dangers of the vanishing article
syndrome, and in shaping how the cultural record is to be preserved.  It
would be good to see those on this list frame the issue more sharply than
I have been able to do in this brief posting, suggest and incorporate
appropriate contractual clauses in their licenses, and thereby focus their
minds, resources, and institutions upon this urgent preservation task.
 
Don Waters  

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of JOHN COX
Sent: Wednesday, June 15, 2005 8:11 PM
To: liblicense-l@lists.yale.edu
Subject: Re: restrictive license clause

This is not new.  It is merely a prudent provision on the part of any
information provider to retain the right to withdraw material that may be
in breach of someone else's rights, or is offensive (in legal terms). If
the "offending" material is included in an electronic resource, and then
the provider should be able to withdraw that material if it is sued.  If
the provider does not withdraw, a court will force withdrawal later on.
 
This provision is standard.  It can be found in all sorts of licenses.  
You can only bject to it if you believe that, once included, it should be
there forever.  It is worth remembering that if the "offending" material
is not withdrawn, the library can also be sued to ensure that it is
withdrawn.  So why do you want to persever in providing access to obscene
or unlawful content?
 
John Cox
John Cox Associates Ltd
John.E.Cox@btinternet.com
www.johncoxassociates.com
_____________________________ 

Jill Carraway <jill@wfu.edu> wrote:

Below is a clause which has appeared recently in a few licenses for
electronic resources. I wonder if others object, as I do, to the last four
restrictions? Is this a growing trend? I ask that this item be removed
from the license. Are there other reactions to this statement that anyone
would like to share?

(Vendor's name) reserves the right to withdraw from the Product any item
or part of an item for which it no longer retains the right to publish, or
which it has reasonable grounds to believe infringes copyright or is
defamatory, obscene, unlawful or otherwise objectionable.

___