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Elsevier Accepts Modified Agreement

On July 2nd, Uta Grothkopf and Ellen Bouton posted a note to libicense-l
reporting that Elsevier had agreed to modify its New Astronomy license to
permit ILL from this electronic file "in accordance with current copyright
law and CONTU guidelines".

They went on to say that they "hoped that other publishers follow the
positive example Elsevier has given". 

Those of you who know me know that this area of ILL is one I and Elsevier
take very seriously.  It is with some regret, therefore, that I have to
say that, while it is true that a modified ESO Library license for New
Astronomy was signed with the wording shown, it was inadvertently signed
by a publishing staff member and it never passed through our Legal
Department.  In short, we made an error and there has, in fact, been no
policy change.  We do not permit ILL from our electronic files. 

Let me use this occasion to expand a bit on our position.  The CONTU
guidelines were explicitly written for photocopying.  That is the context
in which they were negotiated between publishers and librarians and that
is the only context in which they should continue to be applied. 

CONTU was at a time when there were few if any reliable commercial
document delivery services available as an alternative to ILL.  You needed
to get a copy from another library because that was effectively the only

Now, with commercial services, the only reason a library seeks a
photocopied Elsevier article via ILL is that it does not want to
compensate Elsevier for that article.  It is not because the article is in
any other way hard to obtain. 

Somehow CONTU has taken on a broader aura.  Many see it as some blanket
entitlement to five free copies of anything.  It is not.  It is a
negotiated agreement pertaining to photo- copies and photocopies only. 

As others have said on this list recently, the digital environ- ment is
quite different.  During the recent CONFU discussions (for those not
knowing this acronym, it is the Conference on Fair Use), I tried to
introduce new options to consider for new ILL guidelines.  It was judged
to be too early - or too dangerous - to get into substantive discussions,
which I still think is a pity. 

What I suggested as options could be, e.g., (1) that the licensee of
electronic files agree to some limit on the number of ILL copies supplied
or (2) that current material (e.g.  perhaps this year and the preceding
1-2 years' publications)  not be available for ILL copying.  Either of
these measures might give the rights owners the protections they need and
provide more balance. 

As to (1), the CONTU guidelines put all responsibility for counting on the
borrowing library.  That means the supplying library - the licensee of the
electronic files and the only one with whom the rights holder has a
contractual agreement - can wash its hands and say "not my problem",
effectively supplying everyone who wants copies with no questions asked. 
Most publishers are not willing to license under those conditions. 

As to (2), this would probably be harder to get accepted on both sides. 
Some publishers would feel a 2-3 year period for ILL electronic exemption
is too small.  Many libraries would consider it unacceptable for the
opposite reason.  But it might be worth discussing. 

Yet another alternative is to use the electronic files for ILL but with an
agreed-upon payment to the rights holder.  There are some interesting
discussions along these lines going on in Europe. 

I hope to be returning to this topic in a couple of months and propose
some type of meeting or other method to move the discussion forward (at
least for Elsevier licenses).  In the meantime, and as to this case, we
made a mistake in signing the ESO modified license and have not changed
our policy. 

Karen Hunter
Senior Vice President
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