RE: Query Re Library Responsibility for Library Patrons' Use

["Sally Morris \(Morris Associates\)" <sally@morris-assocs.demon.co.uk>]

In the early 1990s, representatives of UK universities and 
publishers came up with the following mutually acceptable 
wording:

5.6 The Licensee shall:

5.6.1 Use all reasonable endeavours to ensure that all Authorised 
[and Walk-in] Users are appropriately notified of the importance 
of respecting the intellectual property rights in the Licensed 
Material and of the sanctions which the Licensee imposes for 
failing to do so, as specified in Schedule 3

(the Schedule to consist of a copy of the institution's internal 
policy - it's recommended that the parties should check that the 
Licensee's policy is acceptable to the Publisher; possible 
additional wording would have the Licensee undertake here to 
enforce the policy outlined in the Schedule)

5.6.2 Use all reasonable endeavours to ensure that Authorised 
[and Walk-in] Users are made aware of and agree to abide by the 
terms and conditions of this Licence; use all reasonable 
endeavours to monitor compliance and immediately on becoming 
aware of any unauthorised use or other breach, inform the 
Publisher and take all reasonable steps, including appropriate 
disciplinary action, both to ensure that such activity ceases and 
to prevent any recurrence

...

5.7 Nothing in this Licence shall make the Licensee liable for 
breach of the terms of the Licence by any Authorised [or Walk-in] 
User provided that the Licensee did not cause, knowingly assist 
or condone the continuation of such breach after becoming aware 
of an actual breach having occurred.

Sally Morris
Consultant, Morris Associates (Publishing Consultancy)
Email:  sally@morris-assocs.demon.co.uk

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Tracy L. Thompson
Sent: 01 March 2007 00:19
To: liblicense-l@lists.yale.edu
Subject: RE: Query Re Library Responsibility for Library Patrons' Use

Try 'reasonable efforts' language as an alternative.

Cheers,
Tracy

At 07:24 AM 2/28/2007, you wrote:

>EEK! Sorry I don't have enough time to fine-tune this: Words to
>live by (imho): Under U.S. law, *never* agree to best efforts
>for anything. It has come to be defined by various and sundry
>court cases as meaning that you pull out all the stops, i.e. you
>stop at nothing to get the job done. May be different in
>Maastricht. But for U.S., just refuse. There's no reason for a
>library to agree on any terms to make students, among others, do
>anything. You know you can't.
>
>Georgia Harper
>Scholarly Communications Advisor
>University of Texas at Austin Libraries
>512.495.4653; 512.971.4325 (c)
>
>-----Original Message-----
>[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Tilly R (UB)
>Sent: Monday, February 26, 2007 2:31 PM
>To: liblicense-l@lists.yale.edu
>Subject: RE: Query Re Library Responsibility for Library Patrons' Use
>
>Hi Andrew,
>
>We solved this by changing the passage to a best efforts clause,
>most publishers accepted it.
>
>Roel Tilly
>Universiteit Maastricht
>Grote Looiersstraat 17
>6211 JH Maastricht
>
>-----Original Message-----
>[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Andrew Waller
>Sent: Saturday, February 24, 2007 4:34 PM
>To: liblicense-l@lists.yale.edu
>Subject: Re: Query Re Library Responsibility for Library Patrons' Use
>
>I see the statement or ones like it now and then.  There's no way
>my institution can sign a license with something like this in it;
>accordingly, we try to get it removed or work in some sort of
>mutual indemnification.
>
>Andrew Waller
>Serials Librarian
>Collections Services
>University of Calgary Library
>waller@ucalgary.ca
>
>
>Cheryl Kugler wrote:
>
>>I have recently come across a sentence in several license
>>agreements which explicitly states that the library, the
>>licensee, will be responsible for misuse of the resource by its
>>patrons and the Licensee will be responsible for for any losses
>>which result. The wording may vary somewhat. Have any of you
>>encountered this statement or a similar one? How did you handle
>>it? Thanks for your help.
>>
>>Cheryl C. Kugler
>>Head, Bibliographic Access Services
>>Honnold/Mudd Library
>>Claremont, CA  91711