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 [log in to unmask]