Re: Objectionable materials

[Ann Okerson <ann.okerson@yale.edu>]

Could you please forward this to <liblicense-l@lists.yale.edu> as I am
not a member?

Thanks, Alex
______________________

Dear John and Peggy

This exchange was passed to me by a colleague since I don't subscribe to
<liblicense-l@lists.yale.edu>.  I am responding as Chair of the IFLA
Committee on Free Access to Information and Freedom of Expression.

With respect, John, I think you misunderstand Peggy's concern.

We all know that most jurisdictions have laws which prohibit the
publication of obscene materials and, as law abiding citizens, we respect
consitutionally valid laws even if we have personal objections to them.  
In democratic countries we can seek to change such laws or at least to
limit their applicability to that which the community would find
objectionable.  We can use the courts to check over-zealous application of
censorship.  Even in countries in which the right of freedom of expression
is not as clearly codified as it is in the USA's First Amendment, the law
can be used to ensure that materials are not withdrawn, banned or cut at
the whim of some official or a self appointed guardian of public morals.

In arguing such cases, the courts have to rule on whether the materials is
obscene or objectionable on other grounds.  They do so, as you say John,
in differing ways which depend on the culture, history and customs of the
jurisdiction.  Thus the TV series "Sex in the City" is shown only on the
HBO cable channel in the US while it is on mainstream broadcast television
in Australia and no doubt banned in other countries.  In a liberal
democracy, a balance is sought between competing interests.

However, not all countries are democratic.  In too many, restrictions are
imposed for other reasons, sometimes political, sometimes religious.  
Material may be restricted to protect the interests of those in power or
those who would be the power (as in Iran, where the religious courts are
frustrating the more liberal intent of the elected government).

The problems with publishers deciding "at any time to withdraw from the
Licensed Materials any item or part of an item for ... which it has
reasonable grounds to believe infringes copyright or is defamatory,
obscene, unlawful or otherwise objectionable"  are many and include:

   * The publisher is making a decision in areas in which courts have
     notoriously found it difficult to decide (obscenity, defamation)
     when the publisher has no expertise or knowledge of the field and
     is not relying on the evidence and body of case law which would be
     considered by a court.
   * Who is to decide what are "reasonable grounds"? John, Peggy, Alex,
     the boy in the packing room?
   * What appeal is there against such decisions?  Unlike a primary
     court, the publisher is claiming an absolute right to decide what
     should be withdrawn?
   * What is the scope of "otherwise objectionable"?  Would this include
     a scholarly article in journal which the religious courts of Iran
     might find to impugn the Prophet? An article which critically
     examined the political suppression of dissent in  Malaysia? An
     article which the  Front National in France might wish excluded
     from the public libraries it controls in Provence? An article
     dealing with the health consequences of  human rights abuses in
     China?

. This is dangerous territory.  Through this provision publishers are
claiming for themselves the right to withdraw material which they believe
"defamatory, obscene, unlawful or otherwise objectionable", not material
which they are forced to withdraw because a court has found the material
"defamatory, obscene, unlawful or otherwise objectionable". Publishers are
claiming rights which are supra-legal.

While we might personally disagree with but pragmatically accept the
withdrawal of materials as a consequence of legally imposed censorship,
that is a far cry from accepting withdrawal at publisher's discretion.

I would hope that publishers and librarians would both be concerned about
freedom of access to information since it is a vital element of our
business. I would hope that we would unite to fight censorship of the
materials which are published and added to our libraries.

However, recognising that there are times when it is illegal to publish
certain materials, I would suggest that the wide scope of this clause
should be constrained, perhaps along the following lines:

"7.3 The Publisher reserves the right at any time to withdraw from the
Licensed Materials 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 which is prohibited in the relevant
jurisdictions. The Publisher shall give written notice to the Licensee
...."

Regards

**************************************************************        
Alex Byrne, Chair                                                     
Committee on Free Access to Information and Freedom of Expression     
International Federation of Library Associations and Institutions     
http://www.ifla.org/                                                  
University Librarian                                                  
University of Technology, Sydney                                      
PO Box 123  BROADWAY  2007                                            
AUSTRALIA                                                             
Tel +61 2 9514 3332                                                   
Fax +61 2 9514 3331                                                   
alex.byrne@uts.edu.au                                                 
**************************************************************        
                                                                      
> ------------------------------------------------------------------------
> Subject: Re: Objectionable materials
> Date: Fri, 1 Jun 2001 17:25:53 EDT
> From: "John Cox" <John.E.Cox@btinternet.com>
> Reply-To: liblicense-l@lists.yale.edu
> To: <liblicense-l@lists.yale.edu>
>
> I think that Peggy Johnson misunderstands the purpose of this
> provision. She has ignored the fact that it says there must be
> reasonable grounds.
>
> Courts do define obscenity.  They do it all the time, all over the
> world. Publishing obscene material is a criminal offence in most
> jurisdictions; unfortunately, the test applied by the courts varies from
> one country to another, and the publisher has to cater for a global
> customer base and readership.
>
> If a publisher publishes material that is obscene, the material will
> be seized, and executives of the publisher might well be jailed.
> Librarians might also be caught if they knowingly continued to make such
> content available to their patrons.  It is important that publishers
> protect themselves - AND THEIR CUSTOMERS - from such problems by
> removing material that is, on reasonable grounds, considered obscene.
> This will always be on legal advice.  That seems to me to be eminently
> sensible.
>
> I stand by the wording of this clause, which is in fact the same text
> as is used in the UK PA/JISC model license that was agreed between
> publishers and librarians in the UK in 1999.
>
> John Cox Associates
> Rookwood, Bradden
> TOWCESTER, Northants NN12 8ED
> United Kingdom
> Tel: +44 (0) 1327 861193
> Fax: +44 (0) 1327 861184
> E-mail: John.E.Cox@btinternet.com
>
> -----Original Message-----
> >This message forwarded to liblicense-l by Peggy Johnson, University
> >of Minnesota.
> >
> >---------- Forwarded message ----------
> >Recently, we have received two contracts that draw heavily from the
> >model license at http://www.licensingmodels.com/academic.htm. This is a
> >positive move except for one clause that makes us very uncomfortable.
> >This (from the above site) is:
> >
> >7.3 The Publisher reserves the right at any time to withdraw from the
> >Licensed Materials 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. The Publisher shall give written notice to the
> >Licensee of such withdrawal. If the withdrawal [represents more than
> >ten per cent (10%) of the book, journal or other publication in which
> >it appeared, the Publisher shall refund to the Licensee that part of
> >the Fee that is in proportion to the amount of material withdrawn and
> >the remaining un-expired portion of the Subscription Period][results in
> >the Licensed Materials being no longer useful to the Licensee, the
> >Licensee may within thirty days of such notice treat such changes as a
> >breach of this License under clause 10.1.2 and 10.4].
> >
> >I do not want a publisher deciding for my institution what is
> >obscene. It seems to me that obscenity is different from copyright
> >infringement or other areas that are more clearly legal or illegal. The
> >courts can't even define obscenity.
> >
> >So -- how are other dealing with this?
> >
> >Peggy Johnson, Assistant University Librarian
> >Editor, Technicalities
> >University of Minnesota Libraries	voice:    612-624-2312
> >499 Wilson Library			fax:     612-626-9353
> >309  19th Ave. So. 			m-john@tc.umn.edu
> >Minneapolis MN 55455			http://www.lib.umn.edu