RE: Monopolies and competition

[Jan Velterop <jan@biomedcentral.com>]

Many thanks to David Goodman for his constructive and helpful comments on
our copyright policy. We will certainly consider them carefully and keep
the readers of the liblicense list posted regarding a new version once it
is ready.

Jan Velterop
BioMed Central Limited
www.biomedcentral.com

-----Original Message-----
From: David Goodman [mailto:dgoodman@phoenix.Princeton.EDU]
Sent: 31 August 2001 21:00
To: liblicense-l@lists.yale.edu
Subject: RE: Monopolies and competition

The terms of this license seem certainly well intended, but contain a few
peculiar anomalies as indicated below. This is not intended to express
dissatisfaction or objection to BioMed Central's underlying philosophy, to
their general model, or their excellent intentions. I think highly of all
three.

> 2.1. the article is original and has not been published or distributed
> anywhere else other than as a pre-print and does not infringe any existing
> copyright or any other third party rights;

"published elsewhere other than as a preprint"  is totally vague: how is
publishing as a preprint a distinctive form? Does it mean "in unrevised
form"  or "published before biomed central publishes it" or with a note
saying "this is not the formal article: please cite the BiomMed version"?

.....

> 2.4. all statements contained in the article purporting to be facts are
> true and any formula or instruction contained in the article will not, if
> followed accurately, cause any injury, illness or damage to the user.

All biomedical journals and other publications that I have ever seen state
the exact opposite, that the authors, editors, and publishers assume no
responsibility for the practical use of the information. The authors are
apparently warranting that the substances discussed will not prove to be
carcinogens or similar hazards, will have no adverse interactions with
other medicines, are not fire or toxic hazards, etc.

> 3. I/we retain copyright in the article, if allowed. If the law requires
> that the article be published in the public domain, the first sentence in
> this clause and the clauses 4 through 6 inclusive do not apply.

This also applies to clause 2.2
.....

> 6. In consideration for the exclusive license granted herein, BioMed
> Central will pay me/us a total of 50% (fifty percent) of net receipts
> (revenues less costs) from any commercial transactions in respect of
> my/our primary research article. Unless I/we notify BioMed Central at the
> time of submission of the article that I/we wish to receive the amount in
> full, and if the 50 percent of net receipts mentioned above amounts to
> less than 100 pounds sterling in any given calendar year, the proceeds
> will be paid into a fund to be used to waive submission charges,
> particularly for researchers from developing countries, and, where
> appropriate, to support other scientific causes, at the discretion of the
> Editorial Directorate. The accounts of this fund will be made public.
> Amounts larger than 100 pounds sterling in any given calendar year will be
> paid out in full, unless I/we have notified BioMed Central that I/we wish
> to donate these proceeds to the fund mentioned above.

Does BioMed seriously expect to produce this revenue from their articles?
The only source I know of for this would be selling them as reprints to
pharmaceutical or other manufacturers for use in promoting their products.
considering clause 2.4, I don't see this very likely.  It also is not
consistent with the statement that currently author charges do not yet
apply).

> 7. The fees paid in respect of clause 6 shall fully discharge BioMed
> Central from all further liabilities.

May I suggest simply eliminating clauses 6 and 7 entirely.
...

> 9. The law that governs these arrangements shall be the law of England and
> Wales and I/we agree to submit to the jurisdiction of the courts of
> England and Wales.

It is well known that no US public institution can agree to this clause. 
The simplest way of dealing with this is to add "unless otherwise provided
by applicable law" 

Please note that I am not an attorney. I do not think a person needs to be
one in order to recognize the problems with this contract.

David Goodman
Princeton University Library