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