2 messages, 170 lines:

(1)---------------------
Date: Fri, 11 Oct 2002 15:50:14 -0500
From: "Piesbergen, Frances R." <sfrpies@umsl.edu>
Subject: Re: Need Documentation on why institutional subscriptions (Sally Morris)

For a complete discussion of the issues of why it is illegal for
institutions to utilize personal subscriptions, see the Bulletin of the
British Library Association, V. 89, #1, Jan. 2001, pp77-78.  In summary,
the two basic points are "good faith" and "fraud".  Publishers have the
legal right to set differential pricing as long as it isn't done with
"predatory intent".  Since a subscription is a legal contract, it must be
abided by in good faith and can be enforced.  It is also fraudulent for an
institution to misrepresent itself in such a way, or solicit another to
misrepresent himself, in order to achieve an advantage over, in this case,
the publisher.  These are pretty basic legal concepts.

Ask the administrators and legal counsel if they want to go to court to
fight a charge of fraud and see if they still want to get those journals
at the individual rate, rather than the institutional rate.

Here are a couple of the pertinent paragraphs from the BBLA article:

        "It goes something like this: The journal publishers are engaged
in the perfectly acceptable process of differential pricing, whereby a
seller sets different prices for different markets in an attempt to
maximize profits. We see differential pricing all the time-senior citizen
discounts, cheap theater tickets for students, and education discounts for
computer hardware. You may practice it yourself in your library when you
charge different prices for doing searches for your institution's medical
students and for doing the same searches for local lawyers. Generally
speaking, such price discrimination is perfectly fine, unless it is done
with "predatory intent," which Oran's law dictionary defines as "lowering
prices solely to put a competitor out of business" [1].
        So the publishers can set whatever prices they think their various
market segments will pay. Why then, do we have to pay them? This answer is
actually pretty simple. The operative terms are "good faith" and "fraud."
The Universal Commercial Code provides the template against which
individual states enact laws to make things consistent across state
boundaries. "Every state, with the exception of Louisiana has adopted,
with some modifications, Article Two of the Uniform Commercial Code (UCC)
as the main body of law that regulates transactions in goods" [2]. Article
Two describes in great detail the circumstances under which sales can take
place and the various remedies that may be available if there are problems
or disagreements. Section 1-203 says (in its entirety), "Every contract or
duty within this Act imposes an obligation of good faith in its
performance or enforcement" [3]. The act also defines good faith as
"honesty in fact in the conduct or transaction concerned" [4].
        Finally, another legal dictionary supplies the definition of
"fraud": "any act, expression, omission, or concealment calculated to
deceive another to his or her disadvantage," specifically, "a
misrepresentation or concealment with reference to some fact material to a
transaction that is made with knowledge of its falsity or in reckless
disregard of its truth or falsity and with the intent to deceive another"
[5]. The issue of fraud seems pretty clear to me. The publisher has the
right to set the price, and if I, or someone acting on my behalf,
misrepresent myself in order to get a cheaper price for an institutional
subscription, I am committing fraud. On the other hand, physicians who, in
good faith, take out personal subscriptions to meet their own needs and
then want to get rid of the issues in some useful fashion are perfectly
entitled to try to donate them to the library."

See the full article for the footnote references.

Frances Piesbergen                             sfrpies@umsl.edu
Documents Librarian                             ph:(314) 516-5084
Thomas Jefferson Library/dep. 0326        fx: (314) 516-5853
Univ. of MO-St. Louis
8001 Natural Bridge Rd.
St. Louis, MO  63121

(2)---------------------
Date: Fri, 11 Oct 2002 15:44:57 -0400
From: "Peter Picerno" <ppicerno@nova.edu>
Subject: RE: Need Documentation on why institutional subscriptions (Sally Morris)

Ms. Morris:

Your response naturally begs the question as to why libraries and other
institutions should bear the brunt of journal costs so that members get free
perks??? I really have to echo the sentiment which has already been
expressed by someone else on this very topic that maybe if libraries
cancelled their subscriptions, then members, who would have to pay for their
own subscriptions, would take a much more active interest in the entirety of
scholarly publishing which might, after all were said and done, benefit
*all* parties involved.

To continue with your cinema analogy, it would be like charging adults five
times the 'normal' price of a ticket so that the ushers and projectionist
could buy popcorn at less-than-cost prices.

P V Picerno
<ppicerno@nova.edu>

-----Original Message-----
Date: Fri, 11 Oct 2002 18:46:28 +0100
From: "Sally Morris" <sec-gen@alpsp.org>
Subject: Re: Need Documentation on why institutional subscriptions (Christy
Henrikson)

This is a bit like sending your child to buy 5 children's tickets so that
the whole family can get into the cinema at half price!  It's cheating, if
not stealing.

Members' rates are usually set at (or even below) cost and if they are
abused, the journal will simply need to recover more of its costs from
subscribers and will be forced to increase subscription rates.

Sally

Sally Morris, Secretary-General
Association of Learned and Professional Society Publishers
South House, The Street, Clapham, Worthing, West Sussex BN13 3UU, UK

Phone:  01903 871686 Fax:  01903 871457 E-mail:  sec-gen@alpsp.org
ALPSP Website  http://www.alpsp.org

Learned Publishing is now online, free of charge, at
www.learned-publishing.org

----- Original Message -----
> Date: Mon, 07 Oct 2002 15:23:17 -0500
> From: "Christy Henrikson" <chenrikson@barr.com>
> Subject: Re: Need Documentation on why institutional subscriptions
>
> Greetings -
>
> I am facing a similar situation in that a member of a society here at my
> company has offered to purchase a number of journal titles we are
> interested in at his subscriber rate. My manager thinks this is an ok idea
> since it would be a significant cost savings for us.
>
> I've pointed out that according to the title page in the journals, "...it
> is essential that members agree not to forward personal subscriptions to
> libraries or reading rooms for at least 24 months after publication of the
> last issue of the calendar year." While she agrees that it seems ethically
> wrong, she wants to know what trouble would we be in if we went ahead and
> did it anyway.  She also thinks that because we are a small library within
> a small, private company this doesn't apply since the prohibition must be
> against public/academic library access. I say it doesn't matter.
>
> Can anyone point out any copyright law or examples of scofflaw that have
> done this and consequences they've faced that will help back me up?
>
> Thanks for your considered responses.
>
>         Christy Henrikson <chenrikson@barr.com>
>
> -------- Original Message --------
> Date: Fri, 27 Sep 2002 14:29:53 -0500
> From: Anne Carroll Bunting <abunting@utmem.edu>
> Subject: Need documentation on why institutional subscriptions
>
> Some of the higher ups in the Chancellor's Office want to know why the
> library can't cancel their institutional subscriptions and let individual
> faculty members subscribe and the cheaper rate and pass their issues on to
> the library.
>
> We know this would not work in that half the issues would never make it to
> the library. We also know this is illegal
>
> They have asked the Library Director to give them documentation on why
> this is illegal. Has anyone see this written up any place that we could
> use?
>
> Anne Carroll Bunting
> Collection Management Coordinator
> abunting@utmem.edu