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Neutral publisher interpretation of license example Robert Boissy 28 Oct 2008 20:01 UTC

I feel the publisher in this case has given you an example of what *they*
consider to be systematic activity.  They have stated that ILL is one instance
of what they consider a systematic activity to give non-subscribers their
content.  ILL is in fact a regular, deliberate and customary service provided by
subscribing libraries to the users of non-subscribing libraries.  For any specific
publication, the instance of lending is sporadic, but the loaning activity itself is
deliberate and ongoing.  It seems quite clear to me that the intention of this
publisher is to prohibit loaning of their publications.

But whether you agree or disagree with my view, I think the level of ambiguity
is so great that one would not want to rely on the interpretation that since
your ILL activity is sporadic, or ILL activity by its nature is sporadic, it is
therefore allowed by this publisher.  There is nothing in clause 1 that would
lead me to that conclusion.

Therefore, I think it is much, much better to simply replace the prohibition in
clause 1 with a clause indicating under what circumstances you propose to
offer the content via ILL.  Then you should press for that clause as a
condition of sale, or reach some variation through negotiation and compromise.

I can offer one example, though I am sure there are plenty more out there for
the typical library to choose from:

The electronic form of the Licensed Materials may be used as a source for
Inter-Library Loan ("ILL") whereby articles can be printed and these print
copies can be delivered via postal mail, fax, or fax-based service to fulfil ILL
requests from an academic, research, or other non-commercial library.
Requests received from for-profit companies or directly from individuals may
not be honored.  Fulfillment of Loansome Doc® service requests is permitted.
ILL through secure electronic transmission, as demonstrated by the ARIEL and
Prospero systems, is permitted.  Files transmitted in this manner must carry
copyright notices.  Licensee and Participating Libraries agree to fulfill ILL
requests in compliance with Section 108 of the United States Copyright Law
(17 USC § 108, "Limitations on exclusive rights: Reproduction by libraries and
archives") and clause 3 of the Guidelines for the Proviso of Subsection 108 (g)
(2) prepared by the National Commission on New Technological Uses of
Copyrighted Works.

I find that the prohibitions against ILL often come from smaller publishers who
do not even realize ILL is governed by CONTU, or from publishers who are
fearful of ILL as practiced in countries that do not abide by CONTU.


Robert W. Boissy
Tel: +1 781 681 0616