RE: Institutional subscription question

["John Cox" <John.E.Cox@btinternet.com>]

Oh dear!  Kevin, my comments were not intended to be an 
"over-reaction and alienation of one's own customers.  I was 
responding to a specific query about the legal status of such 
donations.  That is not the same as a threat, but a simple 
assessment of the legal position.  One of the reasons why you and 
I may not wholly agree on that position is that there is little 
case law simply because publishers and libraries do not litigate 
except in the most extreme cases.  The scholarly publishing 
system exists on trust, and on an assumption that suppliers and 
customers behave ethically.

I entirely agree that accepting such donations is not widespread, 
is not practical for libraries, and in any case is acknowledged 
by the vast majority of librarians as unethical.  I did not raise 
this issue, which I have always thought to be a phenomenon of 
minor importance, and do not wish to prolong it.

John Cox
Managing Director
John Cox Associates Ltd
Rookwood, Bradden
TOWCESTER, Northants NN12 8ED
United Kingdom
E-mail: John.E.Cox@btinternet.com
Web: www.johncoxassociates.com


-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Kevin L Smith
Sent: 16 May 2008 23:58
To: liblicense-l@lists.yale.edu
Subject: RE: Institutional subscription question

The right of first sale is indeed recognized in most countries, 
although it is usually referred to as the doctrine of 
"exhaustion," meaning that the exclusive right to distribute an 
particular copy of a protected work is exhausted by the first 
sale of that particular copy.  The "Doha Declaration" of 2001 
that interpreted the TRIPs agreement (international trade 
agreement on intellectual property binding on all members of the 
World Trade Organization) explicitly confirmed recognition of 
exhaustion by TRIPs, leaving it to member countries to determine 
the scope of the doctrine.

The threat that journal publishers should start insisting on 
contracts that would abrogate this doctrine for individual 
subscribers is another example of overreaction and alienation of 
one's own customers.  The clear message of this thread all along 
has been that libraries do not accept this practice, at least in 
any systematic way, so this threat seeks to solve a nonexistent 
problem.  And Mr. Cox has not replied to the question of whether 
it is similarly "breach of contract" as he understands it if a 
long-time subscriber donates her backrun of a journal to an 
institutional library upon her retirement.

It is very easy to assert that there is some kind of implied 
contract whenever one subscribes to a journal, but "course of 
dealing" is not at all clear here, and there are statutory 
provisions like first sale (or exhaustion) that would seem to 
contradict the claim about implied terms. At its most 
fundamental, first sale is simply an extension into the IP realm 
of the very ancient principle of the free alienability of 
property; I think most courts would be very reluctant to find, on 
the basis of mere implication, that bona fide purchasers cannot 
sell, lease or donate their own purchased property at will.

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
Durham, NC  27708
kevin.l.smith@duke.edu
http://library.duke.edu/blogs/scholcomm/


"John Cox" <John.E.Cox@btinternet.com>
Sent by: owner-liblicense-l@lists.yale.edu
Subject:  RE: Institutional subscription question

I think that Scott's article in the BMLA in 2001 is very much to 
the point. I would go further, and would be interested in 
comments on my analysis of the legal position.

1.  The personal subscriber is in breach of the contract of sale 
under which the personal subscription is supplied.  That there is 
no written contract or terms and conditions is not necessarily 
relevant.  A contract can be implied from conduct, and from 
evidence of custom and practice.  A contract will then be implied 
by the court.  There is enough 'custom and practice' on personal 
subscriptions for it to be clear what the terms and conditions of 
supply are - you only have to look at Scott's article to see that 
the position is clear and understandable.

2.  While the doctrine of first sale applies in the USA (although 
there appears to be no similar specific and direct provision in 
most other countries' copyright laws), the library that accepts 
donated copies of a journal held on personal subscription lays 
itself open to legal action:

a.  If it encourages faculty to donate personal subscription 
copies to the library, it is inducing a breach of contract, which 
is actionable. Personal subscriptions are accepted for the 
individual's personal use, not for the use of library patrons in 
general.

b.  If it uses such donated copies as 'library copies', it lays 
itself open to action for fraud.

c.  If individual librarians, or the library as a matter of 
policy, actively encourage faculty to make such donations in 
order to 'save the library money', it is arguable that a criminal 
offence may have been committed, which in the UK is called 
'obtaining a pecuniary advantage by deception', or, in plain 
language, fraud.

So what would be likely to happen?  If a library systematically 
accepts personal subscription donations and cancels its 
institutional subscriptions, I predict that a group of publishers 
would bring an action to stop it - i.e. an injunction.  The 
personal subscribers would lose their subscriptions and find it 
difficult to place another personal subscription with the same 
publisher(s).  And the library might also face a claim for the 
journal subscriptions it had knowingly replaced by such personal 
subscriptions.

This exchange may well persuade journal publishers to be quite 
explicit on their web sites and in each journal of the terms and 
conditions that apply to personal as well as institutional 
subscriptions.  That would leave no doubt about the matter.

John Cox

Managing Director
John Cox Associates Ltd
Rookwood, Bradden
TOWCESTER, Northants NN12 8ED
United Kingdom
E-mail: John.E.Cox@btinternet.com
Web: www.johncoxassociates.com