From: "Hoon, Peggy" <[log in to unmask]>
Date: Wed, 15 Apr 2015 14:34:29 +0000

Hi Sandy,

I don’t mean to avoid your question or derail this fair use language
conversation but I would like to be on record, as one who does many,
many licenses per month, as well as one of the ones who would be
involved with any problems identified by the publisher/vendor in use,
that my experience with our ILL, other university ILLs, etc. over the
past twenty years is that ILL is a comparatively settled area of
library practice.  Most ILLs I know adhere rather rigidly to the CONTU
guidelines.  I know of no instances myself where our ILL has deviated
from CONTU and chosen a “fair use” response in excess of CONTU.

The problems we routinely encounter with publishers in their contracts
re ILL is their constant attempt to place a very heavy (and way beyond
CONTU) burden upon the fulfilling library to ENSURE that the ILL
materials are not used for commercial purposes, are only for
particular kinds of users, etc. etc.  ALL of that obligation and,
indeed, the ONLY library that can begin to address that is the
requesting library.  No matter how many times I try to explain that to
the sales rep or their legal team, it’s like running up against a
brick wall.

CONTU itself places those obligations, as well as the keeping track of
the rule of five, on the requesting library, not the fulfilling
library.  We can’t, won’t, and aren’t obligated by CONTU as the
fulfilling library to do anything other than have the assertion of
compliance from the requesting library.   I would suggest that if one
has to fight this very obvious over-reaching on the part of the
Licensor, when you are already conforming to CONTU, time after time
after time, you start to think you are not working with someone
operating in good faith.

I am usually more involved in some routine, but patently ridiculous
clauses, like the following, we hit for instances of termination in
the TR Web of Science license:

1.1.    shall:

1.1.1. immediately cease access to and use of all relevant TR
Confidential Information and Products

1.1.2. within thirty (30) days, use its best efforts to cause all End
Users to erase or destroy all copies (in all formats and all media) of
such TR Confidential Information and Products in Client’s or End
Users’ possession or control, and shall, on TR’s request, promptly
deliver to TR a written statement signed by an individual having
sufficient authority and knowledge, certifying that such actions have
been completed in accordance with this clause 3.2.    [t1]

________________________________

 [t1]It is impossible to identify and/or destroy all End User copies
and products that may have been made over time; patently impossible.

TR Legal: please see our feedback above.  We reinstated this language.

This was just one of the many impossible obligations we were supposed
to assume.

I don’t see wild abuse of “fair use”.  I routinely see offerings of
“purchases” of “perpetual access” that are not purchases but rather
licenses and contain termination clauses that prohibit access to the
“perpetual access” purchased.  I also see no acknowledgment of the
fact that the licensed material will one day enter the public domain.
At which point, the restrictive use clauses, that survive termination
of the license, even if the licensee is permitted access to materials
paid for during the effective period of the license, continue to
constrain the licensee with respect to those now public domain works;
while anyone else in the world who has not signed a license with
survivable restrictive use clauses, would be free to use the
now-public domain materials.

Many issues with licenses but the fair use statement is a simple
recitation of the law.  And, I might add, the CONTU guidelines are
voluntary.  Libraries are not required to rely on §108; 108
specifically allows for resort to 107.  There are many more disturbing
clauses than the fair use one.

Best, Peggy



From: Sandy Thatcher <[log in to unmask]>
Date: Mon, 13 Apr 2015 20:30:41 -0500

So, let me get this straight: if a library Licensee decides to share
materials it has licensed with another library under an ILL
arrangement that goes beyond what the CONTU guidelines permit on the
grounds that this is fair use, the publisher by virtue of including
this kind of provision has thereby waived any right to contest this as
a breach of contract but must instead go to court to challenge the
activity as fair use?  I can understand how Authorized Users may, as
not direct parties to the Agreement, rely on fair use to justify their
activities, but I'd say publishers are undercutting the real
advantages of having a license by providing an open window for any
Licensee to rely on fair use instead to justify activities that the
publisher may not view as fair use, but has waived its right to
complain about by virtue of such a clause. I can see why Licensees
like this idea because it means they are free to do anything they like
as fair use when the contract contains such open-ended language; it
effectively negates the enforceability of any term of the contract
that the Licensee considers to be restrictive of fair use. Am I
missing something here?

Sandy Thatcher