I'm curious what sort of contract exists when you buy print (and that's what
we're talking about here, *not* electronic).  I can't think of a single
print subscription we have (either for my institution or my personal copies
at home) where an actual contract exists.  I've certainly never signed a
contract, and I can't think of where any sort of implicit terms might be
located.

The only "terms" I can think of are the publisher's catalog that lists the
prices of the journals.  In that catalog, prices are listed for both
institutional and personal subscriptions.  Given that I know there are
different prices, and given that I know I'll be using the subscriptions at
an institutional level, it seems disingenous of me to purchase at the
personal level.  Is it legal?  I have no idea; I haven't even thought about
the legal issues (to be perfectly honest) because my ethics stopped me
first.  As I stated before, whether we agree with the pricing differential
or not is irrelevant to this specific point.  Work to change pricing policy,
but don't circumvent it. Until the pricing policy changes, work within it.

You said "There's no need for librarians to gift them [the publishers] with
any more rights than they are already entitled to out of a misplaced sense
of "fairness"."  I don't believe I am doing that.  The price list says
institutions pay this, individuals pay that.  Is it right for me to go to a
movie theater and buy a kids ticket even though I'm much older than 12? No,
it isn't.  Is it legal?  Is there a contract surrounding what kind of ticket
I buy? No, there isn't.  But I know that I shouldn't be buying a kids ticket
for myself.  There are different prices at the movie theater for kids,
adults, and senior citizens, and there are different prices for journals.

Kim

_________________________________________________
Kim Maxwell
Serials Acquisitions Librarian
Associate Head, Acquisitions & Licensing Services
Massachusetts Institute of Technology
MIT Libraries, Room 14E-210
77 Massachusetts Ave.
Cambridge, MA 02139-4307
phone: 1-617-253-7028
fax:   1-617-253-2464
email: kmaxwell@mit.edu

> -----Original Message-----
> From: SERIALST: Serials in Libraries Discussion Forum
> [mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Belvadi, Melissa
> Sent: Thursday, June 01, 2006 5:47 PM
> To: SERIALST@LIST.UVM.EDU
> Subject: Re: [SERIALST] Institutional versus personal subscriptions
>
> 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
> mbelvadi@maryville.edu
> 314-529-9531
> 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
> To: SERIALST@LIST.UVM.EDU
> 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
> maryjo.devereaux@cmchealthsys.org
>
>
>
>
> -----Original Message-----
> From: Pennington, Buddy D. [mailto:penningtonb@UMKC.EDU]
> Sent: Wednesday, May 31, 2006 3:11 PM
> To: SERIALST@LIST.UVM.EDU
> 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
> 816-235-1548
> 816-333-5584 (fax)
> penningtonb@umkc.edu
>
> UMKC University Libraries: Connecting Learners to the World
> of Knowledge
>
> www.umkc.edu/lib
>
>
> -----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
> To: SERIALST@LIST.UVM.EDU
> 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'.
>
> Sincerely,
> 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)
> Email:  LHOWLETT@HEALTH.USF.EDU
>
>
> -----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
> To: SERIALST@LIST.UVM.EDU
> 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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