Re: Institutional versus personal subscriptions Belvadi, Melissa 01 Jun 2006 21:46 UTC

There seems to be a great deal of confusion out there are about the
concepts of legality, ethics, and contractual obligations.

A subscription to a periodical is a contract between buyer and seller.
All of these questions raised on this thread recently should come down
to: what are the terms of the contract between the buyer (subscriber)
and seller (publisher)? If the contract explicitly forbids the buyer to
donate the periodical issues to an institution, then the buyer would be
in violation of the contract if they did so and subject to lawsuit or
whatever other remedies might be included in the contract. Since the
library is not a party to the contract, the library has no legal issues
at all, and I would argue, no ethical ones either.   Some journals have
such terms. Those who do not are then subject to the first sale
doctrine, which most certainly DOES apply to periodicals every bit as
much as books. The first sale doctrine (which is explicitly codified in
US law, not just a vague principle) says that once you buy a copy of a
copyrighted work, you can do whatever you want with your physical copy,
except make copies (and related derivations). So you can give it to a
library. Contracts supersede legal rights - a professor can sign away
his/her first sale doctrine rights in order to obtain a subscription.
But if the contract is silent on the issue, the statutory law is in
force. Copyright law is about making new copies of a protected work, not
about the disposition of legally created copies and has absolutely
nothing to do with the issue being discussed in this thread.

The only ethical issue I see is for a library who tried to pressure a
member of their community into violating a subscription contract.
Periodical sales are a business, and a very large and profitable one for
some companies at that.  You can be sure that Taylor&Francis, Elsevier,
etc. have plenty of lawyers looking out for their interests and their
interests are also protected by the massive monopoly power granted under
national and international copyright law. There's no need for librarians
to gift them with any more rights than they are already entitled to out
of a misplaced sense of "fairness".

In the specific example of the gyn group below, one has to look at the
terms of the membership/subscription contract signed/agreed to by the
doctors. But it's important to understand that if the doctors violate
the contract, that's not a violation by the library because the library
isn't a party to the contract. That's a really important point that
can't be emphasized enough.

Other respondents on this thread have itemized excellently the practical
concerns for libraries in dealing with donated serials so I won't repeat
those points.

Melissa Belvadi
Systems and Services Librarian
Maryville University Library
13550 Conway Rd., St. Louis, MO 63141
Fax: 314-529-9941

-----Original Message-----
From: SERIALST: Serials in Libraries Discussion Forum
[mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Devereaux, MaryJo
Sent: Thursday, June 01, 2006 6:49 AM
Subject: [SERIALST] PlainZix RE: [SERIALST] Institutional versus
personal subscriptio ns

What about when all physicians in the group obtain a copy of the same
journal because they are members of an organization and have one of
those membership journals sent directly to the library instead of the
office.  For example,  members of a GYN group who each get Am j of
obstet gynec and have that sent to us. [Which has been proposed], is
that an acceptable "donation"
since the journal comes with membership??

MaryJo Devereaux, M.L.S.
Community Medical Center
Physician's Library
1800 Mulberry Street
Scranton PA  18510
v.  570-969-8197
f.  570-969-8902

-----Original Message-----
From: Pennington, Buddy D. [mailto:penningtonb@UMKC.EDU]
Sent: Wednesday, May 31, 2006 3:11 PM
Subject: Re: [SERIALST] Institutional versus personal subscriptions

I believe it is perfectly fine under the first sale doctrine.  It would
be like someone purchasing a book and then immediately donating that
book to the library.

Like Lee Ann, we also have some titles where faculty donate their issues
to the library.  And we also have problems such as getting the issues in
a timely manner and not getting all the issues.  Therefore, we have
internally coded these titles as personal gift titles and we have a
public note that indicates that since these are personally donated, we
typically get them later than usual and that we often do not get all the
issues for a particular volume.

So, to make a long story short, the physicians are within their rights
to donate these to your library and you can use them. However, there is
usually a downgrade in the service you'll be providing your users
(getting the issues later than subscribing libraries or not getting all
the issues).

Buddy Pennington
Serial Acquisitions Librarian
UMKC - University Libraries
800 E. 51st Street
Kansas City, MO  64110
816-333-5584 (fax)

UMKC University Libraries: Connecting Learners to the World of Knowledge

-----Original Message-----
From: SERIALST: Serials in Libraries Discussion Forum
[mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Howlett, Lee Ann
Sent: Wednesday, May 31, 2006 1:34 PM
Subject: Re: [SERIALST] Institutional versus personal subscriptions

We've had various physicians do this for us over the years by
subscribing and then immediately giving us the issue when it arrives.
Unfortunately, it never seemed to work out.  We never managed to obtain
all of the issues for a volume from anyone.

People mean well when they offer to do this but, in my experience,
something always happens where they either forget to send an issue on or
they wanted to keep just 'that one'.

Lee Ann Howlett
Lee Ann Howlett, MA
Head, Serials, Dept.
Shimberg Health Sciences Library
University of South Florida
12901 Bruce B. Downs Blvd., MDC 31
Tampa, FL  33612
(813) 974-9080
(813) 974-7032 (fax)

-----Original Message-----
From: SERIALST: Serials in Libraries Discussion Forum
[mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Bluhm-Stieber, Hella
Sent: Wednesday, May 31, 2006 12:27 PM
Subject: [SERIALST] Institutional versus personal subscriptions

Hello all,
We are facing severe budget cuts and need to cancel half of our journal
subscriptions. The suggestion was made to ask for donations from
physicians who subscribe to certain journals the library needs. We are
concerned about the legal implications of this. We explained to our
management that we think that this is against copyright law.
One problem is that the doctors can pay for subscriptions through their
educational fund, but cannot donate money from it.

We think that the donors would have to pay for an institutional copy in
order that we can use it in the library. I would be grateful for any
suggestions or documentation why this is o.k. or not o.k.

Thank you very much,
Hella Bluhm-Stieber

Hella Bluhm-Stieber, MLIS, AHIP
Medical Librarian
Milton J. Chatton Medical Library
Santa Clara Valley Health & Hospital System
751 S. Bascom Ave.
San Jose, CA 95128
(408) 885-5654
Fax (408) 885-5655

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