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Gordon & Breach Subscription Licensing for 1995 (fwd) Birdie MacLennan 09 Dec 1994 14:37 UTC

The following memo was posted to the closed ARL-Directors list
yesterday.  If you have questions or comments about it, please message
Ann Okerson <ann@cni.org>.  Thanks to Ann for forwarding this to us in
response to some of the questions and concerns recently posted to
SERIALST on this topic.  -- Birdie

-----------------
Date: Thu, 8 Dec 1994 22:45:18 -0500 (EST)
From: Ann Okerson <ann@cni.org>
Subject: Gordon & Breach Subscription Licensing for 1995 (fwd)

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
libraries 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 photocopied material through sale, inter-library loan,
other loan or gratis." It is also stated that copying need not be
reported to any reporting organization.  The letter then refers to a
table entitled "Subscription Rate Explanation" (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 subscribers 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 contractual 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
photocopies 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
provisions 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
stated 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 Australian Council of Libraries and Information Services), the
ARL attorney, and copyright lawyer colleagues in North America for their
assistance in reviewing the license terms and potential implications for
ARL members.