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Re: "Double" Licenses

I do think there is a lot of history involved in the important discussion
of "double licenses". Only a very short while ago there were quite a
number of publishers who simply did not appreciate that librarians do want
to obey the law and abide by contracts. There were also quite a number of
librarians who made the point very vigorously that they could do nothing
to impose obedience by their patrons to any contract or license that they
entered into with a publisher.

At the same time, for very good reasons, we have all come to accept that
contracts/licenses are there to be understood and agreed to and, if not
understood and agreed to, they cannot be signed. We emphasize the legal
wording. Perhaps sometimes an emphasis on the legal side gets in the way
of instructional possibilities.

My position, when I was a publisher, was to put up a screen before every
access to an article which set out terms and conditions for the user,
terms and conditions which were also attached to the terms and conditions
which the librarian will have received as part of the subscription
process. I showed this document to Ann Okerson. There was no clicking to
accept involved but she did feel it was (nevertheless) contractual.

I am very keen on the instructional and not strictly legal element in
contracts or licenses. I know that many end users have difficulty
remembering what they can or cannot do. They do want guidance. However
what can one do?

I hate to bring in the UK experience into what is primarily a US listserve
but we here have found it possible to gain agreement between librarians
and publishers even to a full license. Would not a dialogue on such a
non-controversial area be possible between the AAP and the ARL (for
example) or is this naive? Does anti-trust cut this out?

The non-controversial area I refer to is what rules we want end-users to
abide by. I know it is not entirely non-controversial but a lot of it is
and, as has been pointed out, it is in the interest of both librarians and
publishers that the end-user knows what he or she can do and cannot do.

-----Original Message-----
From: Andrew Martin <amartin@cancopy.com>
To: 'liblicense-l@lists.yale.edu' <liblicense-l@lists.yale.edu>
Date: 26 January 1999 02:06
Subject: RE: "Double" Licenses

>However, while the publisher may not be able to sue the patron for
>breach of contract, that doesn't prevent an action for copyright
>infringement, does it?
>Andrew Martin
>Executive Director
>Canadian Copyright Licensing Agency
>6 Adelaide Street East,  Suite 900
>Toronto, Ontario  M5C 1H6
>tel  (416) 868-1622
>fax (416) 868-1613
>-----Original Message-----
>From: owner-liblicense-l@lists.yale.edu
>[mailto:owner-liblicense-l@lists.yale.edu]On Behalf Of CopyrtLib@aol.com
>Sent: Monday, January 25, 1999 10:26 AM
>To: liblicense-l@lists.yale.edu
>Subject: Re: "Double" Licenses
>Hi Ann and others:
>It seems to me that because of a legal principle called "privity of
>contract", the electronic publisher wants to ensure that the terms and
>conditions in the license agreement are in fact effective.  Privity of
>contract means that one can only obligate the person or institution -- ie
>the library -- and not subsequent users -- ie the patron. Thus, if the
>publisher has in its contract with the library that a patron can only make
>one copy of any article in its database, and the patron makes 2 copies,
>then the publisher has no right in the contract to sue the patron.
>However, if the publisher also enters into a contract with the patron,
>then the publisher would have such a right.  Another way of achieving the
>same goal is to obligate the library to ensure (if this is really
>possible) that the patron only make one copy and therefore create a
>contractual obligation on which the publisher can later take a legal
>As long as the terms and conditions are consistent in the library and
>patron agreements with the publisher, it may be more advantageous to a
>library because they are then less legally obligated for the actions of
>the patron (which is difficult to control.)
>Lesley Ellen Harris
>Copyright & New Media Lawyer
>Editor:  Copyright & New Media Law:  For Librarians & Information