From: "Seeley, Mark (ELS-WAL)" <[log in to unmask]>
Date: Wed, 8 Apr 2015 00:37:47 +0000

Though it is often the case that exceptions, and fair use, are often
drafted in ways that are unclear and a matter for further debate if
not actual litigation.  In my view clarity in license language is a
better alternative, although I think that position won't surprise
anyone, as it is a position that I have in common with my colleagues
in various publishing trade associations, and of course I steer some
of that debate among the publishing community in my role as chair of
the STM association's Copyright Committee.

As I noted in my earlier post, Elsevier is sometimes asked to put in
references in US negotiations to "fair use" but we generally do not
receive a clear response as to what precisely is meant.  Most
publisher licenses that I have seen for online content,
notwithstanding what I have sometimes heard from my friends at the
British Library, provide for quite extensive internal academic and
research use, enable coursepack use of digital content, have some kind
of provisions for interlibrary loan, and address questions about
archiving and long-term preservation concerns, and now deal with TDM
concerns.  That list could always be expanded or added to, I'm sure,
but clarity about what additional rights would be useful/helpful is,
in my view, better than references to possible exceptions and
interpretations.

As far as lawyer jokes, usually lawyers themselves tell the worst of
these, but of course real discourse is always preferable!

Mark

Mark Seeley, Senior Vice President & General Counsel
Elsevier
M: [log in to unmask]
Internal Elsevier Legal department intranet site:
http://nonsolus/legaldepartment/
External information at http://www.elsevier.com/wps/find/homepage.cws_home


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

From: Winston Tabb <[log in to unmask]>
Date: Tue, 7 Apr 2015 23:24:35 +0000

The language would apply to any exception, such as ILL, not just to
fair use. It is one of the key elements of our "ask" at WIPO

Winston

*************

From: Ann Okerson <[log in to unmask]>
Date: Tue, Apr 7, 2015 at 6:51 PM

Winston, I could see this being worth a try for licenses originating
in the US, but could it work for resources coming from other
countries, where fair use isn't part of the copyright system, and so
fair use would not be well understood by either the originating
publisher or the licensing library?

Thanks much for thinking out of the box here, Ann

***********

From: Winston Tabb <[log in to unmask]>
Date: Mon, 6 Apr 2015 14:00:40 +0000

The single most useful thing we could do is insist that license
language include a provision that the license terms do not supersede
provisions of the US copyright act.

Winston Tabb/Johns Hopkins