From: "Hamaker, Charles" <[log in to unmask]>
Date: Sun, 23 Nov 2014 23:42:20 +0000

It seems to me perpetual access is a meaningless phrase without a
guarantor or some type of insurance or assurance beyond the immediate
contracting parties. For instance, what organizations have as their
main purpose guaranteeing perpetual access?  Can they be contracted
with by the original signers to offer continuance if the publsher or
aggrgator goes out of business?   Any publicly held or privately held
company or business can go out of business. I would suggest a library
absent direct control of the digital files they have "purchased"
hasn't really purchased anything for the long term unless the parties
have designated a survival contingency of some sort.

Several models come to mind but in current configurations are
limited. They would have to have some sort of standing in order to
intervene.  Otherwise as in the present case libraries are dependent
on the kidness of other entities.

I think we need significant change in how libraries approach how they
assure continuation of access in a black swan event.  The concept of
business continuity planning in the case of eResources is often
ignored in such purchases.  In fact, the majority of e resource
purchases bound by contracts, no matter what language is used to
describe the transactions, are imo defacto leases. Breach definitions
are commonly such that the provider may in certain situations act
unilaterally.  Black swan events push library claims to the bottom of
the considerations.

This is not a criticism of PORTICO or CLOCKSS or any other
organization dedicated to preservation or of any company in the
business of providing content to libraries.  But to be able to
intercede in any perpetual access contract that has failed, you have
to have  standing.  Clarity in continuation contingencies is needed if
libraries are to play a role in maintaining  our common cultural
heritage. Outsourcing as a wish or hope is not enough.

Chuck

-------- Original message --------
From: Ann Shumelda Okerson <[log in to unmask]>
Date: Fri, 21 Nov 2014 09:13:55 -0500

John, I don't know about a "legal definition."  In a contract,
perpetual access would be however the two parties have defined it
between themselves.

The Liblicense vocabulary section offers this definition of
perpetual license (written by our lawyer at that time, but
that doesn't make it "legal"):

"Perpetual License: The continuing right to access digital information
after the termination of a license agreement. Also, a license with no
termination."

Cheers, Ann Okerson



On Wed, Nov 19, 2014 at 8:27 PM, LIBLICENSE <[log in to unmask]> wrote:
> From: "Wagstaff, D John" <[log in to unmask]>
> Date: Wed, 19 Nov 2014 01:07:33 +0000
>
> Hello everyone:
> I'm new to this list, so please excuse a simple question: is there a
> legal definition of "perpetual access" that might provide useful
> guidance in cases like this regarding what we should/should not expect
> when a content provider goes into bankruptcy or cannot continue to
> fulfill contract terms for other reasons?
>
>
> John Wagstaff
> Head, Music & Performing Arts Library
> University of Illinois at Urbana-Champaign
> School of Music
> Urbana IL61801
> e-mail: [log in to unmask]