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Re: Clarification on SERU proposal

But doesn't this "agreement," whether it takes the form of a "written license" or not, still come with "terms and conditions," which is what the recent post from the University of Chicago Press mentioned. And if one must accept these "terms and conditions" through some sort of click-on procedure, isn't that still a "license" fully valid in a court of law? Our officials at Penn State frown on such click-on agreements, and we at the Press have had to negotiate individually a number of them anyway with the vendors offering them.

Sandy Thatcher
Penn State University Press

Hi Joe,

One of the defining discoveries in this process was to learn that
as long as there was a written license agreement, it would be
normal for each state institution to require that their own
specific language be included, thus precluding any standardized
agreement. In part to avoid this situation, we sought to develop
a true alternative to a license agreement - rather than an
alternative license agreement. Librarians and publishers have
noted that often we are comfortable with an implied contract just
as with a verbal agreement. Where there is general consensus, by
avoiding the paperwork, we can streamline the process for anyone
involved. Realistically, in many transactions there isn't a
potential loss of substantial revenue for the publisher or risk
for either publisher or library. With new publishers who would
not take issue with terms supported by librarians, the SERU
approach actually shortens the sales cycle and eliminates the
delay of processing paperwork that isn't used.

Further comments are welcome on SERU which is available now in
draft form with FAQs on the NISO website.
http://www.niso.org/committees/SERU

Judy Luther MLS, MBA
www.InformedStrategies.com
610-645-7546 EDT

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Joseph J.
Esposito
Sent: Friday, March 16, 2007 3:19 PM
To: liblicense-l@lists.yale.edu
Subject: Clarification on SERU proposal

I am struggling to understand the following.  Can anyone help?


This document, "The SERU Approach to E-Resource Subscriptions:
Framework for Development and Use of SERU," presents a shared
set of understandings to which publishers and libraries can
point when negotiating the sale of electronic content. The
framework offers publishers and libraries a solution to the
often burdensome process of bilateral negotiation of a formal
license agreement by allowing the sale of e-resources without
licenses if both parties feel their perception of risk has been
adequately addressed by current law and developing norms of
behavior.

JE:  This is a legal matter, and I am not a lawyer.  My layman's
understanding is that there is a distinction between a license (a
form of contract, which in this case is between copyright holders
and organizations that want to use their material) and the
codification of that contract, typically in a hardcopy document,
which is confusingly also called a license.  There is a
difference, in other words, between the agreement (the license)
and the codification in the form of a document (the, er,
license), just as there is a difference between a marriage and a
marriage certificate.

Is SERU addressing license #1 or license #2?  If #2, as I
suspect, then calling this the elimination of licenses is
terrribly confusing, as many people would confuse #2 with #1 and
thus think there is no binding agreement between the parties
simply because no document had been signed.

My understanding is that SERU is seeking to reduce administrative
costs by eliminating paperwork and many aspects of negotiations
(a worthy goal) and is working to improve the terms of licenses
for its constituency by pointing to "best practices" (meaning
good for libraries), also a worthy goal, though whether the
proposal will have the intended effect is unknown.

Any clarification of this situation would be appreciated.

Joe Esposito