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. Regards, Robert W. Boissy Springer Tel: +1 781 681 0616 robert.boissy@springer.com