From: Sarah Durrant <[log in to unmask]>
Date: Tue, 13 Nov 2012 12:43:14 +0000

Dear Barbara, Jennifer and fellow sufferers,

I am a publishing consultant, coach and trainer with 23 years'
experience in the information sector. Amongst other things, I
facilitate the Licensing and Negotiation Skills course on behalf of
UKSG.

From the wording you have quoted, the action is ensuring Users comply
with terms.  As you suggest, this language is unreasonable since it is
not physically possible for anyone to guarantee such an undertaking.
Unfortunately, as you will be aware, this kind of language is quite
common within content licences.  Typically drafted by lawyers who are
used to dealing with - indeed are paid to obsess about - certainty,
unambiguity and full compliance, publisher licences can sometimes be
blunt instruments.

My suggestion in such circumstances is always dialogue.  Go back to
the service provider and explain why this wording gives you issue.
Provide detail about how your institution is organised to illustrate
why this level of compliance is not possible. Let them know what
practices you currently follow to achieve awareness and compliance
amongst your Users.  It can be helpful to supply an alternative
wording which you would be able to sign (the JISC model licence can
provide wording here). As Jennifer suggests, clauses such as 'use
reasonable effort' or similar are more workable.

If the service provider proves intransigent, it may be a matter for
your legal counsel if you have one.  An alternative would be to
request in writing a statement from the service provider detailing the
actions they would take should you sign and then be found liable for
non-compliance at some future point. Quite often, service providers
issue warnings and allow time for corrective action to be taken before
taking more draconian measures but much depends on the nature and
extent of any breach. The ultimate course of action of course is for
you not to sign the licence but this can amount to cutting off one's
nose to spite one's face, particularly if the resource in question is
in high demand.

It would be useful if service providers who have such clauses in their
licences could comment on what the fear or mistrust is that's driving
their approach. How much real experience do you have of significant
breach, particularly given how much libraries have done to cultivate
awareness and good practice in the area of compliance?

Similarly, it would be useful to hear from service providers who are
content with more reasonable language in their licences: what is it
you are able to trust which other content owners apparently feel they
cannot?

Regards
Sarah Durrant

Red Sage Consulting
Sarah Durrant Coaching
Office: +44(0)1728 633196
Mobile: +44 (0)7715 121910
Email: [log in to unmask]
uk.linkedin.com/in/sarahdurrant


-----Original Message-----

From: "B.E. Swetman" <[log in to unmask]>
Date: Fri, 9 Nov 2012 10:50:13 -0500

I'm also dealing with this contract and have a question about the
later portion of statement.

It says "The Client shall ensure that each User fully complies with
the terms of this Agreement (including the Terms of Use) and the
Client shall be responsible to The Economist for any failure so to
comply."

It has occurred to me that there is no particular action that we are
agreeing to be responsible to do. Does anyone know what this
"responsible to The Economist for any failure" actually means?

Barbara Swetman [log in to unmask]
Acquisitions and Serials Librarian
Hamilton College Library
Clinton, NY 13323