Re: Interlibrary loans from other institutions' electronic databases?

[Edward Barrow <edward@xxxxxxxxxxxxx>]

On Friday 24 September 2004 03:58, John T. Mitchell wrote:
> Perhaps I lack the proper context, but this statement by Paul sent a
> chill own my spine: "It was really a revelation to me that academic
> institutions are negotiating license agreements to include Fair Use and
> ILL access rights, and really any other thing that is traditional in
> libraries."  I was not aware of that.
>
> We are in pretty deep trouble if we are at the point of having to
> negotiate to exercise Section 107 rights, considering that Congress has
> declared these to be superior to the copyright.  Perhaps what was meant
> was negotiate an agreement that the library would not be sued for
> exercising fair use in certain ways, but it is close to the same thing
> The heavy penalties for infringement are, of course, a strong incentive
> for libraries to get permission for what they have a right to do without
> permission, as insurance in case the copyright owner disagrees with
> their interpretation, but I would hope libraries would, as a general
> rule, insist that fair use analyses is for them to make without
> negotiation, and even over the copyright owner's objection.
>

I suspect that you are missing a little bit of context here, since what we are 
talking about is online resources. Access to online resources requires the 
making of copies in digital form within the machines, servers and proxies 
that make up network, and it is better for all concerned (with the possible 
exception of litigation lawyers) if these are expressly licensed. Licences 
are negotiated to cover  the normal everyday use of online resources - uses 
that don't need licensing at all with print-on-paper publications - before we 
even get to the additional uses like fair use and inter-library document 
deliver (ILDD, aka ILL).
With print-on-paper, fair use and ILDD involve the making of copies, but there 
are statutory exceptions to copyright to permit them, hence no licence is 
required. However, there is a long history of disagreement as to the extent 
of these exceptions, which in any case are jurisdiction-specific: s.107 fair 
use, and s.108 ILDD apply only in the USA. 
Some publishers attempted to introduce contractual terms in licences for their 
online products to control what they perceived as having been abuses. In 
particular, ILDD is seen by publishers as being potentially very damaging, 
particularly when it is used by consortia of libraries in conjunction with 
so-called "collection rationalisation". This was, in the early 1990s, a 
significant cause of subscription cancellation and the consequent inflation 
in subscription rates as publication overheads had to be spread across fewer 
subscribers; ironically, the emergence of consortial licensing in the latter 
half of the decade turned out to be a solution. 
This history aside, the question is whether specific terms for ILDD are needed 
in online licences. If a licence is clear about the normal, everyday use of a 
resource, and prohibits everything else, what conclusion can be drawn? 
Silence on the issue leaves open a  rich seam of uncertainty for the 
litigation lawyers.  
My preferred solution would be first, to include in every licence a recital 
declaring that the licence does not override fair use or any other statutory 
exception to copyright; and second, to include specific terms, adapted if 
appropriate to the licensee's requirements, covering uses that would, with 
print on paper products, unquestionably be covered by s.108. 
There remain some publishers who harbour doubts as to the commercial viability 
of this approach, particularly as it may threaten existing or planned 
pay-per-view business models.  But as the business models for online 
licensing mature, these threats recede into a more proportionate context.




-- 
Edward Barrow
Copyright Consultant
edward@xxxxxxxxxxxxx
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