RE: ILL language

["Croft, Janet B." <jbcroft@ou.edu>]

I've heard of this type of clause before.  I don't think it's enforceable,
since it's asking you to be responsible for someone else's potential
misuse.  At least they aren't asking you to be responsible for the
ultimate end user's misuse. The copyright law that requires libraries to
post warnings near public photocopiers and at locations where users pick
up their ILL's protects us from responsibility for end user misuse, and I
think you could make a case that this clause should parallel that
provision. About the only way you can ensure/insure this is to delve into
the recipient library's procedures and make sure they have a process for
deleting the item from their server after the end user has accessed it,
and that's putting a bit too much of a burden on you as the lender.  I'd
recommend negotiating this clause!

Janet Brennan Croft
Head of Access Services
University of Oklahoma

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From: "Karl A. Kocher" <kakocher@ucdavis.edu>
To: liblicense-l@lists.yale.edu
Subject: ILL language
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Date: Wed, 10 Mar 2004 15:50:03 EST

You may also have encountered the following language and I wonder if it
has raised similar questions.

... Licensee may supply single copies of articles included in the Licensed
Materials to another library solely for the noncommercial use of such
library's patron for the purposes of research or private study, provided
that Licensee exercises due care to insure that no copies of such article
may be retained by the recipient library.

"Ensure" rather than "insure" might be intended.  Beyond that, is the
language making reference to American Geophysical Union vs. Texaco, which
is often referenced when the question of ILL to commercial firms is
mentioned.  Is the use of the language intended to apply to the lender a
higher standard than Section 108 in Title 17?  How enforceable would such
language actually be?  Even if the lending library required the physical
return of the loaned article, how could it insure/ensure that no copy is
retained?

Apologies if this has been queried before and a search of the archives
failed to turn it up.

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