From: Kevin Smith <[log in to unmask]>
Date: Mon, 20 May 2013 12:27:48 +0000

Hi Heather,

I agree wholeheartedly about the need for more transparency in
licensing transactions.  But I also wanted to reply about a specific
question you raise.

The provision in most contracts that is often called a "merger" or
"entire agreement" clause tells the parties that the what is written
in the document is the complete set of terms for whatever transaction
is at issue.  Its purpose is to exclude evidence about some verbal
assurance or e-mail exchange that pre-dated the formal contract if a
dispute ever arises.  I have heard lawyers refer to this provision as
the "your sales rep was lying" clause, and it is an important reminder
to always be sure that the terms one needs or wants are explicitly
included and bad ones excluded; one should never rely on the "oh,
don't worry about that,  we never enforce it" kind of promises that we
occasionally hear from vendors.  But licensing arrangements that go
beyond the scope of the contract would not infringe such a clause.
The merger clause does not prevent additional agreements on such
matters between the same parties, and it does not even exclude later
modifications of the contract (which usually must also be in writing).

Your question, I think, raises one of the problems with blanket
licenses.  Such licenses usually encompass, without distinction, three
kinds of uses of copyright-protected material.  First are the licensed
uses for which we have already paid, in the case of periodical
databases, for example.  An additional licenses for those uses is
unnecessary, but paying for one (improvidently, IMO) does not violate
any merger clause.  The second kind of uses encompassed by a blanket
license are those that are already authorized by law, under fair use
in the U.S. or fair dealing (which looks a lot more like fair use
after the recent decisions by the Supreme Court of Canada) in Canada.
Once again it is unnecessary and improvident to pay for a license for
those uses.  Finally, a license usually authorizes uses that go beyond
the scope of either of these two prior authorizations, and it is the
permission for those uses that gives a license its value.

Which gets me to the point I wanted to make -- the difficulty with
most blanket licenses for academic uses is that they fail to
distinguish between these three.  Indeed, it is impossible to
accurately draw these lines, at least in advance.  What this means is
that we need to have a good deal of skepticism about blanket licenses.
 They are only occasionally a good deal for academia, in my opinion,
and it requires a good deal of transparency about pricing, as you
demand, to know if the benefits one will gain from a license are
actually worth the cost.  To me, the problem with the Access Canada
licensing tariff, especially after the Copyright Modernization Act and
the five Supreme Court rulings, is precisely that the cost/benefit
analysis seems now to argue against any raise, much less one of this
size, since the Supreme Court has held  that copying for instructional
purposes may qualify as fair dealing.  Much of what institutions were
previously paying for in that third category of uses, at the lower
tariff, may now, it seems to me, be included in the second category,
for which no license is needed.

Kevin

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communication
Duke University Libraries
P.O. Box 90193
Durham, NC  27708
919-668-4451
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-----Original Message-----
From: Heather Morrison <[log in to unmask]>
Date: Fri, 17 May 2013 15:11:46 -0700

Access Copyright has applied to the Canadian Copyright Board for a
tariff to force a $35 / student payment on the post-secondary sector:

http://www.gazette.gc.ca/rp-pr/p1/2013/2013-05-18/html/sup1-eng.html

This is a tenfold increase from the previous rate.

There are many problems with this proposed tariff: in this post, I'll
highlight two, and ask some questions about potential actions that
libraries and universities might consider with respect to our
licenses:

First, there is the sheer absurdity of paying MORE for copying when so
much of what we purchase is bought not in the old single-copy paper
model (where paying to make extra copies did make some sense), but
rather as electronic resources for which we are already paying a lot
more for sitewide access.

Second, it appears to me that this is a system significantly lacking
in transparency. Because libraries are already paying quite a bit for
usage of many of the resources, perhaps we should be looking carefully
to make sure that some of the publishers we are paying are not
double-dipping by collecting for sitewide usage with broad-based
rights, then collecting again through copyright collectives.

For example, using the Access Copyright lookup tool I see that if I
have a copy in digital format only of Elsevier's Accident and
Emergency Nursing, then "You may make a copy of this publication under
your Access Copyright licence or tariff.*" What's wrong with this
picture? Canada's university libraries that subscribe to Science
Direct are paying quite a bit for university usage which would include
the uses Access Copyright is seeking under the tariff.

This isn't a national issue anymore. There is nothing in the Access
Copyright application to the Copyright Board that says that they are
collecting money to send to publishers based in other countries, on
the Access Copyright website is a link to the International Federation
of Reproduction Rights Organizations (IFRRO): http://www.ifrro.org/

Two questions:

1.      If indeed publishers are collecting via copyright collectives
in addition to the revenue that they get from us via licenses that
cover the same uses, wouldn't this be a breach of our "This
Agreement...shall comprise the complete terms and conditions of use"?
If so, this would not be a new breach, but rather one that extends
back quite a bit in time, right? If this is the case, it strikes me
that this might give our universities potential avenues of legal
push-back worth exploring with the campus lawyers.

2.      Should we start asking for full disclosure of participation in
copyright collectives in our negotiations? Access Copyright is suing
York University. Given that Elsevier content is obviously in Access
Copyright's repertoire, then indirectly this is Elsevier suing York
University, isn't it?

Thoughts?

Dr. Heather G. Morrison
Freedom for scholarship in the internet age
http://summit.sfu.ca/item/12537