Ann Okerson, Association of Research Libraries, ann@cni.org.
[Reprinted with permission. This message also appeared on SERIALST. -ed.]
December 8, 1994
To: ARL Directors
From: Ann Okerson
Re: Alert Re. Gordon & Breach/Harwood Subscription Licensing for 1995
This memo explains a recent licensing arrangement by Gordon & Breach that
appears to use a contract to override some library and fair use provisions
of U.S. and Canadian copyright law. It also raises prices significantly for
many institutional subscribers. Therefore we are sending this message, at
the request of some ARL members and after receiving legal advice. We have
also had contact with librarians in research institutions in Australia and
the U.K. who agree with these perspectives and concerns.
Any decisions you make about how to handle the institutional subscriptions
affected by this policy will need to be conveyed to G & B before the end of
the year. It is our understanding that for subscriptions not renewed by
year-end but in the next calendar year, this publisher may charge a higher
subscription rate.
BACKGROUND
Recently, various North American, Australian, and British research librar-
ies have been made aware, some through their subscription agency and some
directly, that Gordon & Breach (G&B) are seeking to redefine the terms by
which they supply academic journals. G&B are proposing to have the some of
the usage of such journals regulated by contractual terms, rather than by
national copyright laws. This practice, already common in the context of
electronic sources of information (e.g., CD-ROM licences), is of great
concern and could have significant negative consequences for libraries.
Below are details of the G&B letters, and some examples of how libraries
have responded.
THE SUBSCRIPTION RENEWAL LETTER
A letter from International Publishers Distributor Ltd (IPD) as agent for
G&B and Harwood is being sent to subscribers "with extraordinary need to
copy and redistribute exceeding the rights granted by copyright laws." If
identified by them as such a subscriber, the library client is advised that
the so-called "Network Rate Subscription" applies. If the library agrees to
pay this rate, G&B agree (contractually) to license certain copying and
usage rights allowing for "broad but not unlimited redistribution of photo-
copied material through sale, inter-library loan, other loan or gratis." It
is also stated that copying need not be reported to any reporting organiza-
tion. The letter then refers to a table entitled "Subscription Rate Expla-
nation" (the SRE Table) which describes a number of different levels of
copying, redistribution and other usage (called "usage-privileges"), and
specifies whether a particular subscription rate permits that level of
usage. The level of copying permitted in each category is not altogether
clear.
THE SUBSCRIPTION RATE EXPLANATION TABLE (SRE)
The so-called Base Rate allows "Photocopying of individual articles within
fair use". This does not necessarily mean, however, that Base Rate sub-
scribers retain their "fair use" privileges as defined by U.S. or Canadian
law. If the client library agrees to the Base Rate, then (unless otherwise
stated) it is deemed to have agreed to the terms set out in the SRE Table.
***One of these terms is that "usage-privileges are governed by Swiss Law."
Whatever Swiss "fair use" does permit (this is not entirely clear), it
appears that under this standard libraries might not be able to copy and
distribute journal articles to the same extent as American laws currently
permit.***
Under the SRE Table, certain usage-privileges are clearly marked with the
word "NO" for Base Rate subscribers. It is likely, therefore, to be a con-
tractual term of subscription that those privileges not apply.
I. Thus, under the Base Rate, a subscriber MAY NOT engage in the following:
o Interlibrary lending
o Photocopying of single articles in excess of fair use, but not for re-
sale or re-distribution
o Re-sale or redistribution of one or more photocopies of single articles
to end-users
o Re-sale or redistribution of entire issues, or photocopies of entire
issues, to end-users.
o Electronic storage and/or transmission of all or part of entire issues.
II. Academic libraries that subscribe at the Network Rate will be given
greater usage-privileges, and MAY engage in the following activities:
o Interlibrary lending
o Photocopying of single articles in excess of fair use, but not for re-
sale or re-distribution
o Re-sale or redistribution of one or more photocopies of single articles
to end-users.
III. Corporate and Government subscribers that agree to the Network Rate
are given similar usage-privileges to academic libraries except that they:
o May NOT engage in interlibrary lending
o MAY engage in re-sale or redistribution of entire issues, or photocop-
ies of entire issues, to end-users which are branches or affiliates of
the subscriber
o MAY engage in electronic storage and/or transmission of all or part of
entire issues, but only for storage of part by, or transmission to,
branches or affiliates of the subscriber.
A crucial item is that under the Network Rates, the subscription price will
be between ***3 and 6 times*** the Base Rate. This may vary according to
whether the institution is an academic library or a corporate/government
subscriber.
CONSEQUENCES OF SUBSCRIPTION ON THESE CONTRACTUAL TERMS
By re-subscribing on the terms of the SRE Table, the institution's copying
and usage rights will be regulated contractually, with the consequence that
rights previously enjoyed under the relevant national copyright law could
be restricted. The costs and benefits of this contractual re-definition of
rights will vary.
For example, any library able to rely on the fair use and library provi-
sions of the U.S. Copyright Act, as well as the ILL guidelines, could be
worse off. By agreeing to remain on the Base Rate as defined by G&B, the
institution is likely to contract away certain rights. By agreeing to pay
the Network Rate, a library will pay substantially more, and will gain few
rights in excess of what national laws give libraries in any case.
(It is our understanding that G & B articles cannot be individually bought
through the usual document or article delivery services like UnCover.)
However, there may be advantages for some subscribers. For example, since
the rights are being granted contractually, the library can copy on that
basis, which means that for some uses the permissions requirements of the
U.S. or Canadian Copyright laws may not apply.
In any case, a subscriber will need to think carefully about whether the
extra price being asked to pay gives enough new rights (if any) to make the
change worthwhile. The G&B license is legal. Institutions have the choice
about whether to agree to it or not, which means to: accept its terms, pay
the prices asked, and be bound by Swiss Law and Zurich Chamber of Commerce
arbitration in the event of a dispute.
RESPONDING
Three research libraries have informed us about their responses, which have
been:
1. One has written to G & B asking to be removed off the Network rate,
stipulating that it will renew only at the base rate. The library has stat-
ed in writing that it will do so and apply the various user and library
rights applicable under its national copyright law.
2. One has, upon discussion with the appropriate librarians and faculty,
decided to cancel titles rather than pay the three to six times rate for
the Network level.
3. One has, after due consideration, decided to renew its subscriptions
under the higher Network price rate.
The ARL hopes that this information is timely in your renewal process.
Please message me (ann@cni.org) if you have comments or questions.
We owe considerable thanks to our research library colleagues in Australia
and the UK (in particular Jamie Wodetzki, copyright attorney at the Austra-
lian Council of Libraries and Information Services), the ARL attorney, and
copyright lawyer colleagues in North America for their assistance in re-
viewing the license terms and potential implications for ARL members.
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