From: Sarah Durrant <[log in to unmask]>
Date: Wed, 19 Sep 2012 18:11:31 +0100

Dear Michele

I am a publishing consultant and owner and facilitator of the
Licencing and Negotiation Skills for Librarians course which I run on
behalf of UKSG. I should also say what I'm not, which is a lawyer or
someone with formal legal training/experience.  Nor am I familiar with
the content on MD Consult, the nature of which may make it a special
case in the context of Fair Use.

I will share the following which I hope is useful:

Content owners may create licences governing use of their content
which feature clauses which over-ride otherwise applicable national
and international copyright agreements. I personally found this fact
quite shocking when I discovered it a few years ago.  It seems
counter-intuitive and over-protective to me and perhaps to others on
this list too, but it does happen.

Your current correspondence is with the Elsevier legal department.
Without prejudice, my suggestion is that you contact someone senior
elsewhere in Elsevier who is closer to the company's library
customers, their users and their users' needs (your sales
representative for example). You could ask them why 'fair use' is
being over-ridden/denied. Is there something about the particular
content/format of MD Consult which they believe warrants this? You
could also describe what your users would be doing with MD Consult
under Fair Use and explain why this is important to their teaching and
research and, more broadly, to your institution.  My hope is that as a
reasonable customer with a reasonable request you will get a
reasonable response.

For more information about Fair Use, there is a good resource on the
Stanford website
(http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html).
(apologies if you already know this stuff backwards).

Good luck.
Sarah

Sarah Durrant
Red Sage Consulting
Email: [log in to unmask]
Web: www.redsage.org

-----Original Message-----
From: "Shipley, Michele" <[log in to unmask]>
Date: Mon, 17 Sep 2012 14:15:17 -0400

Hi. This message is for all the medical librarians who license
electronic resources. I'm in the process of negotiating a new license
agreement for the University of Rochester's MD Consult subscription
and for the first time ever in my experience, the publisher's legal
department refuses to recognize the fair use exemption. Here's the
response I received from Elsevier's legal department:

Regarding Section 1.4, please note that the Fair Use provision was not
included in your original MD Consult agreement and cannot be included
in the renewal agreement either.  Per our legal department, the
authorized uses permitted under our subscription agreement are already
broad and clear and will not be altered or confused by reference to
so-called "fair use provisions" of the US Copyright Act or other laws.

Has anyone else run into this roadblock with MD Consult?  I would
appreciate learning about your experience and hearing any advice you
can offer.

Thanks. Michele

Michele Shipley, MLS
Assistant Director of Digital & Branch Libraries Edward G. Miner
Library University of Rochester Medical Center Rochester, NY 14642
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