Clarification on SERU proposal

["Judy Luther" <judy.luther@informedstrategies.com>]

Hi Joe,

One of the defining discoveries in this process was to learn that 
as long as there was a written license agreement, it would be 
normal for each state institution to require that their own 
specific language be included, thus precluding any standardized 
agreement. In part to avoid this situation, we sought to develop 
a true alternative to a license agreement - rather than an 
alternative license agreement. Librarians and publishers have 
noted that often we are comfortable with an implied contract just 
as with a verbal agreement. Where there is general consensus, by 
avoiding the paperwork, we can streamline the process for anyone 
involved. Realistically, in many transactions there isn't a 
potential loss of substantial revenue for the publisher or risk 
for either publisher or library. With new publishers who would 
not take issue with terms supported by librarians, the SERU 
approach actually shortens the sales cycle and eliminates the 
delay of processing paperwork that isn't used.

Further comments are welcome on SERU which is available now in 
draft form with FAQs on the NISO website. 
http://www.niso.org/committees/SERU

Judy Luther MLS, MBA
www.InformedStrategies.com
610-645-7546 EDT

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Joseph J.
Esposito
Sent: Friday, March 16, 2007 3:19 PM
To: liblicense-l@lists.yale.edu
Subject: Clarification on SERU proposal

I am struggling to understand the following.  Can anyone help?

>This document, "The SERU Approach to E-Resource Subscriptions: 
>Framework for Development and Use of SERU," presents a shared 
>set of understandings to which publishers and libraries can 
>point when negotiating the sale of electronic content. The 
>framework offers publishers and libraries a solution to the 
>often burdensome process of bilateral negotiation of a formal 
>license agreement by allowing the sale of e-resources without 
>licenses if both parties feel their perception of risk has been 
>adequately addressed by current law and developing norms of 
>behavior.

JE:  This is a legal matter, and I am not a lawyer.  My layman's 
understanding is that there is a distinction between a license (a 
form of contract, which in this case is between copyright holders 
and organizations that want to use their material) and the 
codification of that contract, typically in a hardcopy document, 
which is confusingly also called a license.  There is a 
difference, in other words, between the agreement (the license) 
and the codification in the form of a document (the, er, 
license), just as there is a difference between a marriage and a 
marriage certificate.

Is SERU addressing license #1 or license #2?  If #2, as I 
suspect, then calling this the elimination of licenses is 
terrribly confusing, as many people would confuse #2 with #1 and 
thus think there is no binding agreement between the parties 
simply because no document had been signed.

My understanding is that SERU is seeking to reduce administrative 
costs by eliminating paperwork and many aspects of negotiations 
(a worthy goal) and is working to improve the terms of licenses 
for its constituency by pointing to "best practices" (meaning 
good for libraries), also a worthy goal, though whether the 
proposal will have the intended effect is unknown.

Any clarification of this situation would be appreciated.

Joe Esposito