From: Kevin Smith <[log in to unmask]>
Date: Wed, 4 Dec 2013 10:19:07 +0000

This fable is very cute, but I don't understand why the rigid moralism of
a fable should apply to contract negotiations.  Certainly each party to a
potential contract has the right to negotiate for terms that will reduce
the risk to that party of breach.  No one can do everything, and it is
simple prudence, one might even say honesty, to be sure that one can
perform the obligations undertaken in a contract in compliance with its
terms, and to reform or remove terms that raise a risk of non-compliance.
As it happens, I disagree with Danny about the risk associated with this
particular type of clause, but that is beside the point; he and his
institution are entitled to negotiate in their own interests.  The vendor,
as the drafter of the contract, has presumably already made certain that
the terms meet their needs and protect them adequately.  Why is it a
subject of sarcastic condemnation when the library that is being asked to
sign the agreement simply tries to do the same thing?


Kevin L. Smith, M.L.S., J.D.
Director of Copyright and Scholarly Communications
Duke University Libraries
P.O. Box 90193
Durham, NC 27708
919-668-4451
[log in to unmask]


On 12/3/13 2:26 PM, "LIBLICENSE" <[log in to unmask]> wrote:

>From: Joseph Esposito <[log in to unmask]>
>Date: Mon, 2 Dec 2013 09:12:06 -0500
>
>Let me be sure I understand this.  An institution concludes that it
>will be incompetent to comply with the terms of a license that it
>agrees to sign.  Rather than examine the area of anticipated
>incompetence in order to fix it, it insists that the terms of
>compliance be removed.  The institution is now therefore in
>compliance.  Everyone is happy.  Do I have that right?
>
>Will our esteemed moderator permit me to retell the fable of the
>disobedient dog?
>
>The owner of a beloved dog was upset that the dog was disobedient.
>The dog's master would put it out in the yard, where it would bark and
>bark, annoying all the neighbors.  The master shouted, "Don't bark!
>Don't bark!"--but to no avail.
>
>Then the owner had an idea.  He called the dog to his side and said,
>"Go out in the yard and bark to your heart's content."  The dog
>dutifully went outside, barked and barked, until the neighbors howled
>in a raging response.
>
>The master called the dog in and gave it a treat.  The dog had
>complied with the master's wishes in every way.  Everyone is happy.
>
>Joe Esposito
>
>
>On Sun, Dec 1, 2013 at 9:23 PM, LIBLICENSE <[log in to unmask]> wrote:
>>
>> From: Danny Kingsley <[log in to unmask]>
>> Date: Fri, 29 Nov 2013 01:45:12 +0000
>>
>> Perhaps I should elucidate what I mean by a slippery slope.
>>
>> A few years ago when I was working for the Australian Broadcasting
>> Corporation as a journalist for the Science Online website we
>> inadvertently broke embargo on a story from Nature (media outlets
>> receive the journal under embargo a couple of days early to allow time
>> to interview people and go live with stories at the time of
>> publication of the journal).
>>
>> Nature immediately demanded the article be removed from the site (fair
>> enough) and also said they would black the entire ABC ­ all states,
>> all media platforms - for three months. It was only through intense
>> negotiation and some serious undertakings on Science Online's behalf
>> that we were able to avert the blackout on embargoed versions.
>>
>> When we tie the payment for licensing to published research to the
>> conditions around what can be deposited into our own institution's
>> repository then we are opening up the library to a potentially
>> difficult situation. Managing the copyright of articles deposited into
>> a repository is complex and time consuming*, as I know from many
>> year's direct experience. If your institution inadvertently made a
>> publication available in contravention to the CTA or other
>> arrangement, what is the consequence to the license to the corpus of
>> research from that publisher?
>>
>> I can't imagine the academic community would look kindly upon a
>> situation where they were not able to access research in the library
>> because of an administrative error. It is worth checking what the
>> cross ramifications are between the two aspects of the license
>> agreement in terms of how they impact on each other.
>>
>> Danny
>>
>> *It does not help that the rules are also constantly changing ­ see
>> 'Walking in quicksand ­ keeping up with copyright agreements' -
>>
>>http://aoasg.org.au/2013/05/23/walking-in-quicksand-keeping-up-with-copyr
>>ight-agreements/
>>
>> Dr Danny Kingsley
>> Executive Officer
>> Australian Open Access Support Group
>> e: [log in to unmask]
>> w: wwww.aoasg.org.au