This particular resource is an outlier. The publisher does not own copyright for the content – users contribute content and the whole thing is then licensed to professionals and academic customers. It’s essentially a repository where the user who uploads the content has to click through an agreement that asserts they have the legal right to contribute that content, but the language of that agreement is very flimsy and would not aid in our protection IMO. The content itself is creative in nature, which is why I’m so concerned about the possibility of third-party CR/IP right infringement claims.
I’m sensing some consensus among those who’ve responded that the idea of the liability cap isn’t ideal. I’m planning to push back hard on it. Thanks so much for those who’ve replied and please continue to do so if you have any ideas that would help. Crowd-sourcing strategy is a great thing!
Lisa
Lisa Mackinder | Head of Acquisitions and Collections Services
Alden Library | Ohio University
740-593-2707 | [log in to unmask]
From: Iris Brest <[log in to unmask]>
Date: Tue, 1 Oct 2019 00:07:49 +0000
Of course the Licensor has copyright permissions, to the best of its belief. But one can be mistaken. It is very common to try to limit liability. The question I wonder about is the terms of the insurance carried by the parties.
From: "Levenson, Patricia" <[log in to unmask]>
Date: Mon, 30 Sep 2019 13:39:15 +0000
It is the publisher’s responsibility to clear copyright BEFORE they publish/use a third party’s work. There is no way I would be comfortable with indemnification in this situation and would walk away from the resource.
This begs many questions: Why is the publisher doing this? Do they not have the legal and/or financial resources to ensure copyright compliance? If they don’t have copyright to these works what rights do they have? How can they legally publish this information if not? Is it a legit publisher? Since it’s a moderately priced resource (as stated) it appears (to me) the publisher is making a half-baked effort to publish while passing on any copyright risk to its subscribers.
Unless I’m misunderstanding the original question…
Patricia (Patti) Levenson
Administrative Coordinator
Co-Chair, Professional Women’s Committee
O: 508-856-2205
The Lamar Soutter Library
University of Massachusetts Medical School
55 Lake Avenue North
Worcester MA 01655-0002
From: "Mackinder, Lisa" <[log in to unmask]>
Date: Fri, 27 Sep 2019 13:32:03 +0000
Licensor is willing to indemnify us as Licensee against third-party claims of copyright/IP infringement, but the indemnification is subject to a liability cap of aggregate amounts paid in the 12 mo prior to the event in the claim.
It’s a moderately priced resource, but the copyright of the content could be and often is owned by third parties.
Any thoughts on having liability limited with a cap from the licensee perspective?
Thanks,
Lisa
Lisa Mackinder | Head of Acquisitions and Collections Services
Alden Library | Ohio University
740-593-2707 | [log in to unmask]