RE: Query Re Library Responsibility for Library Patrons' Use

["Bebbington Laurence" <Laurence.Bebbington@nottingham.ac.uk>]

In the UK the term "best endeavours" is used to indicate a high 
level of obligation under a contract. Under this a party may have 
to incur reasonable expenses in order to comply with the 
contractual terms.

"Reasonable endeavours" is a less onerous burden and requires 
actions to be taken that are not disadvantageous to the party 
upon whom the duty is imposed. So such things and costs and 
practicalities can be taken into account.

"All reasonable endeavours" is regarded as somewhere between the 
two!

Laurence W. Bebbington
Law Librarian/IS Copyright Officer
Information Services
The University of Nottingham
Nottingham
NG7 2RD

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Karl Bridges
Sent: 05 March 2007 02:25
To: liblicense-l@lists.yale.edu; Sally Morris (Morris Associates)
Subject: RE: Query Re Library Responsibility for Library Patrons' Use

But the point has already been made that in the US "all 
reasonable endeavours" would probably be interpreted as "pull out 
all the stops" "do anything and everything".  The UK is, 
eveidently, interpreting "reasonable" as, well, reasonable.  In 
the US "reasonable" is interpreted much differently -- more like 
"every possible effort".

The real difference here is that in the US there isn't any 
mutually acceptable wording. And, in all likelihood, there won't 
be because publishers (or their lawyers) would be very unlikely 
to make any agreement that would limit their ability to sue for 
damages should they feel inclined. If people have entered into 
such agreements I'd like to know about it and what language was 
used.

Quoting "Sally Morris (Morris Associates)" 
<sally@morris-assocs.demon.co.uk>=

> In the early 1990s, representatives of UK universities and publishers
> came up with the following mutually acceptable
> wording:
>
> 5.6 The Licensee shall:
>
> 5.6.1 Use all reasonable endeavours to ensure that all Authorised [and

> Walk-in] Users are appropriately notified of the importance of
> respecting the intellectual property rights in the Licensed Material
> and of the sanctions which the Licensee imposes for failing to do so,
> as specified in Schedule 3
>
> (the Schedule to consist of a copy of the institution's internal
> policy - it's recommended that the parties should check that the
> Licensee's policy is acceptable to the Publisher; possible additional
> wording would have the Licensee undertake here to enforce the policy
> outlined in the Schedule)
>
> 5.6.2 Use all reasonable endeavours to ensure that Authorised [and
> Walk-in] Users are made aware of and agree to abide by the terms and
> conditions of this Licence; use all reasonable endeavours to monitor
> compliance and immediately on becoming aware of any unauthorised use
> or other breach, inform the Publisher and take all reasonable steps,
> including appropriate disciplinary action, both to ensure that such
> activity ceases and to prevent any recurrence
>
> ...
>
> 5.7 Nothing in this Licence shall make the Licensee liable for breach
> of the terms of the Licence by any Authorised [or Walk-in] User
> provided that the Licensee did not cause, knowingly assist or condone
> the continuation of such breach after becoming aware of an actual
> breach having occurred.
>
> Sally Morris
> Consultant, Morris Associates (Publishing Consultancy)
> Email:  sally@morris-assocs.demon.co.uk