Re: Institutional subscription question

["\"FrederickFriend\"" <ucylfjf@ucl.ac.uk>]

The point rightly made by Kevin Smith is to my mind the saddest 
aspect of this discussion. Whatever the legal rights or wrongs of 
this and other licensing issues, it is a sign of the gulf between 
the way publishers now perceive their library customers and the 
way those customers used to be perceived that publishers look 
more to the law than to the needs of library users. When I began 
my career many years ago there was a strong sense that publishers 
and librarians were on the same side in meeting the needs of 
library users. On so many issues now librarians hear "the licence 
(or the contract) will not permit it".

Fred Friend
JISC Scholarly Communication Consultant
Honorary Director Scholarly Communication UCL

----- Original Message -----
From: "Kevin L Smith" <kevin.l.smith@duke.edu>
To: <liblicense-l@lists.yale.edu>
Sent: Saturday, May 17, 2008 12:57 AM
Subject: RE: Institutional subscription question

> The threat that journal publishers should start insisting on
> contracts that would abrogate this doctrine for individual
> subscribers is another example of overreaction and alienation of
> one's own customers.  .
.
> Kevin L. Smith, J.D.
> Scholarly Communications Officer
> Perkins Library, Duke University
> Durham, NC  27708
> kevin.l.smith@duke.edu
> http://library.duke.edu/blogs/scholcomm/
>
>
> "John Cox" <John.E.Cox@btinternet.com>
> Sent by: owner-liblicense-l@lists.yale.edu
> Subject:  RE: Institutional subscription question
>
> I think that Scott's article in the BMLA in 2001 is very much to
> the point. I would go further, and would be interested in
> comments on my analysis of the legal position.
>
> 1.  The personal subscriber is in breach of the contract of sale
> under which the personal subscription is supplied.  That there is
> no written contract or terms and conditions is not necessarily
> relevant.  A contract can be implied from conduct, and from
> evidence of custom and practice.  A contract will then be implied
> by the court.  There is enough 'custom and practice' on personal
> subscriptions for it to be clear what the terms and conditions of
> supply are - you only have to look at Scott's article to see that
> the position is clear and understandable.
>
> 2.  While the doctrine of first sale applies in the USA (although
> there appears to be no similar specific and direct provision in
> most other countries' copyright laws), the library that accepts
> donated copies of a journal held on personal subscription lays
> itself open to legal action:
>
> a.  If it encourages faculty to donate personal subscription
> copies to the library, it is inducing a breach of contract, which
> is actionable. Personal subscriptions are accepted for the
> individual's personal use, not for the use of library patrons in
> general.
>
> b.  If it uses such donated copies as 'library copies', it lays
> itself open to action for fraud.
>
> c.  If individual librarians, or the library as a matter of
> policy, actively encourage faculty to make such donations in
> order to 'save the library money', it is arguable that a criminal
> offence may have been committed, which in the UK is called
> 'obtaining a pecuniary advantage by deception', or, in plain
> language, fraud.
>
> So what would be likely to happen?  If a library systematically
> accepts personal subscription donations and cancels its
> institutional subscriptions, I predict that a group of publishers
> would bring an action to stop it - i.e. an injunction.  The
> personal subscribers would lose their subscriptions and find it
> difficult to place another personal subscription with the same
> publisher(s).  And the library might also face a claim for the
> journal subscriptions it had knowingly replaced by such personal
> subscriptions.
>
> This exchange may well persuade journal publishers to be quite
> explicit on their web sites and in each journal of the terms and
> conditions that apply to personal as well as institutional
> subscriptions.  That would leave no doubt about the matter.
>
> John Cox
>
> Managing Director
> John Cox Associates Ltd
> Rookwood, Bradden
> TOWCESTER, Northants NN12 8ED
> United Kingdom
> E-mail: John.E.Cox@btinternet.com
> Web: www.johncoxassociates.com