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Yale e-license letter

Dear liblicense-l readers: This is a note I sent last night to a publisher
of science journals upon reading their license.  The license is for a
dozen or so mainstream titles that we also receive in print and very much
want to make available to our users from the publisher's site via WWW.

How many of you do routinely write such letters?  I find that the language
is not standard enough for us to send a standard letter, so tend to
write each one as a separate piece.  When the publisher provides an e-mail
contact address, as this one does, it makes the process relatively quick
and simple.  

In this case, the e-access is free.

Dear XXX:

On behalf of the Yale University Library, I am writing you re. the license
(Online Journal Service Agreement) that our Science acquistions librarian
has forwarded to me for signature. 

Before we sign this license (as we very much want to do), I would like to
call to your attention some phrasing that causes us some worry and ask you
whether it can be adjusted.  The following comments arise out of the
concern that our users be able to use the XXX journals, whether in e or p
form, to further their learning, instruction, and research activities.  It
is not altogether clear that this license permits those things (though we
believe it probably intends to), which in turn may mean that even the very
best-intentioned of users will find themselves unknowingly in violation of
these terms, which in turn could be problematic for both us and for you.

Let me enumerate the parts that cause us to hesitate:

3.  Authorized users.  

A.  This section does not seem to provide for the walk-ins that may come
to the library and use our computers.  These might be visiting students
from a local high school or regional college.  They could include visiting
researchers calling on their Yale colleagues to work with them on a piece
of research or publication.  We ask that all our licensors allow us this
kind of walk-in use.  We agree with you (later on) that use by
profit-making corporate researchers or independent information providers
is not what your license seeks to permit; nor do we.  I believe that the
XXX and our intentions match with regard to Authorized Users and that
allowing walkins to look at your articles on line on a non-systematic,
random basis (the same as they may look at the ejournals of your fellow-
publishers) is in the spirit you intend.

B.  The last paragraph of this section asks us to represent that each
Authorized User has agreed to the terms and conditions set forth here.  We
have not been able, with *any* of our licensees to represent this.  While
*we* have agreed to the terms and conditions of any signed license, our
individual users have not and cannot. There is simply no manageable
mechanism for them to so agree. 

As Yale, the licensing institution, we do agree that we make every best
effort to provide a copyright- and license-complaint environment and that
we work with publishers to make sure that the terms of use are observed. 
We look to you, as well as to ourselves, to take note of data that suggest
there is a problem and to work to solve any misuse or abuse that either of
us identifies.  I hope that you can adjust your license language in this
direction.  I can identify and propose language that helps with this
matter from other mainstream publishers, if this would be of use. 

4.  Permitted Use.

A.  What is meant by "private" use?  We trust that this includes the
possibility that a teacher could decide to come to class and show the
students an article relevant to that day's lecture?  Or that a researcher
would not be violating the contract by sending a part of a work to a
colleague elsewhere when this facilitates, say, a piece of collaboration
or research (scholarly communication).  Note that we are NOT suggesting
that any of the uses above be systematic or distribute the work to
multiple users via mailing lists or other similar distribution! We are
asking that the license permit the kinds of routine daily activities that
comprise academic life. 

B.  What are "brief" quotations?  We presume that anything that could be
cited in a publication (with footnote or other appropriate attribution) 
without permission (fair use, e.g.) out of a print source could also be
cited from an e-source, right? 

5.  Prohibitions.  Our only concern here is the statement that no one can
ever make print or e-copies for transmission to non-subscribers.  See
above:  where this kind of copy is in the range of "personal use" as it
applies to scholarship (the example above was that a faculty member is
collaborating with another in a joint experiment or joint research).  For
the rest, where the use is multiple, systematic, commercial, for financial
gain, etc., we completely agree with the prohibitions of #5. 

I hope that the requests and comments above make sense to you and that we
can adjust the language to meet both the spirit of your current Agreement
and our normal educational use at Yale.  I look forward to hearing from
you soon. 


Ann Okerson
Associate University Librarian
Yale University
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