Thanks for all of the feedback that I received on my question regarding the Economist license. I also got many replies off-list and all of those agreed not to sign with that language as well.
Just to clarify...I work at Johns Hopkins University on a team that runs a separate online library for Excelsior College. So, this question pertains to the Excelsior College Library and does not affect the JHU libraries or their collections. This is an issue for us as a small, online Library, since we do not have the Economist in print and it was dropped from Ebsco. We do not get it in any other packages like some larger libraries might.
However, after much back and forth, (well actually just back since they did not budge at all even when I suggested just adding the word "Reasonable"), we decided to do exactly what Sally described and did not move forward with the subscription. We will monitor any requests over the next year to determine if our users miss it, but I am guessing they will either use the few free individual articles they are allowed or use something else. No one has complained yet and it was dropped from Ebsco a while back...
Best,
Jennifer
Jennifer Castaldo
Distance Education Librarian/Electronic Resources Manager
Entrepreneurial Library Program
Johns Hopkins University
Baltimore, MD 21218
[log in to unmask]
410-516-8823
Excelsior College Library
[log in to unmask]
877-247-3097
-----Original Message-----
From: LibLicense-L Discussion Forum [mailto:[log in to unmask]] On Behalf Of LIBLICENSE-L automatic digest system
Sent: Wednesday, November 14, 2012 1:00 AM
To: [log in to unmask]
Subject: LIBLICENSE-L Digest - 12 Nov 2012 to 13 Nov 2012 (#2012-225)
There are 5 messages totaling 368 lines in this issue.
Topics of the day:
1. no negotiations question (5)
----------------------------------------------------------------------
Date: Tue, 13 Nov 2012 14:40:04 -0500
From: LIBLICENSE <[log in to unmask]>
Subject: Re: no negotiations question
From: "Schwartz, Judy" <[log in to unmask]>
Date: Tue, 13 Nov 2012 02:19:23 +0000
I would suppose it to mean, that if the publisher became aware of any
egregious / regular downloading of many articles over a short period
of time, that they could sue you for damages; i.e., however much they
deem an article's worth if anyone purchased it from them.
Jennifer, since you are at a much larger institution than I, perhaps
you could speak with your copyright (although this is a contract,
which trumps copyright) guru on campus?
If you check Kenneth Crew's website, there may be verbiage there you
could use, OR you could contact Ken and see what he says.
I agree that there's no way you could assure what they are asking you to do.
Judy
Judith K Schwartz
Director of Library Services
The Libraries @ Trocaire
________________________________________
From: "B.E. Swetman" <[log in to unmask]>
Date: Fri, 9 Nov 2012 10:50:13 -0500
I'm also dealing with this contract and have a question about the
later portion of statement.
It says "The Client shall ensure that each User fully complies with
the terms of this Agreement (including the Terms of Use) and the
Client shall be responsible to The Economist for any failure so to
comply."
It has occurred to me that there is no particular action that we are
agreeing to be responsible to do. Does anyone know what this
"responsible to The Economist for any failure" actually means?
Barbara Swetman [log in to unmask]
Acquisitions and Serials Librarian
Hamilton College Library
198 College Hill Rd.
Clinton, NY 13323
On 10/31/2012 7:19 PM, LIBLICENSE wrote:
> From: Jennifer Castaldo <[log in to unmask]>
> Date: Wed, 31 Oct 2012 20:11:41 +0000
>
> Hello all,
>
> I monitor this list daily, but it is my first time posting. I am
> hoping you can help me!
>
> Earlier this year, Ebsco had to drop the full text version of the
> Economist from its aggregated databases (such as Academic Search
> Complete) due to a bid from the EIU for a semi-exclusive
> contract/rising costs. So, now we are currently trying to get an
> institutional online subscription from the Economist directly, as this
> is the only way to get the full online version with images.
>
> I have issue with a line in their subscriber agreement:
>
> “The client shall ensure that each user fully complies with the terms
> of this agreement.”
>
> Typically, other subscriptions have a similar clause, but it is worded
> as such: “The client shall use reasonable efforts to notify users of
> the terms of this agreement.” Worded this way I am obviously fine
> with.
>
> I have always been taught never to promise that we will “police” users
> and we have no way to “ensure” that users comply. I have been trying
> to negotiate this small line in the agreement, but they will not
> budge. They said "this is a consumer based contract and we must
> maintain consistency in the terms for all users of the website. The
> contract is what it is."
>
> Have you all had any luck in dealing with similar situations? Is this
> something that is not a big deal that I should just sign and overlook?
>
> Thank you in advance for any advice! Best,
> Jennifer
>
> Jennifer Castaldo
> Electronic Resources Manager/Distance Education Librarian
> Entrepreneurial Library Program
> Johns Hopkins University
> Baltimore, MD 21218
> [log in to unmask]
>
> Excelsior College Library
> [log in to unmask]
------------------------------
Date: Tue, 13 Nov 2012 14:41:34 -0500
From: LIBLICENSE <[log in to unmask]>
Subject: Re: no negotiations question
From: Winston Tabb <[log in to unmask]>
Date: Tue, 13 Nov 2012 02:57:54 +0000
Libraries/librarians cannot be "responsible" for "ensuring" what users
do. It would be difficult to imagine any university counsel's agreeing
to such language.
----- Original Message -----
From: "B.E. Swetman" <[log in to unmask]>
Date: Fri, 9 Nov 2012 10:50:13 -0500
I'm also dealing with this contract and have a question about the
later portion of statement.
It says "The Client shall ensure that each User fully complies with
the terms of this Agreement (including the Terms of Use) and the
Client shall be responsible to The Economist for any failure so to
comply."
It has occurred to me that there is no particular action that we are
agreeing to be responsible to do. Does anyone know what this
"responsible to The Economist for any failure" actually means?
Barbara Swetman [log in to unmask]
Acquisitions and Serials Librarian
Hamilton College Library
198 College Hill Rd.
Clinton, NY 13323
On 10/31/2012 7:19 PM, LIBLICENSE wrote:
> From: Jennifer Castaldo <[log in to unmask]>
> Date: Wed, 31 Oct 2012 20:11:41 +0000
>
> Hello all,
>
> I monitor this list daily, but it is my first time posting. I am
> hoping you can help me!
>
> Earlier this year, Ebsco had to drop the full text version of the
> Economist from its aggregated databases (such as Academic Search
> Complete) due to a bid from the EIU for a semi-exclusive
> contract/rising costs. So, now we are currently trying to get an
> institutional online subscription from the Economist directly, as this
> is the only way to get the full online version with images.
>
> I have issue with a line in their subscriber agreement:
>
> “The client shall ensure that each user fully complies with the terms
> of this agreement.”
>
> Typically, other subscriptions have a similar clause, but it is worded
> as such: “The client shall use reasonable efforts to notify users of
> the terms of this agreement.” Worded this way I am obviously fine
> with.
>
> I have always been taught never to promise that we will “police” users
> and we have no way to “ensure” that users comply. I have been trying
> to negotiate this small line in the agreement, but they will not
> budge. They said "this is a consumer based contract and we must
> maintain consistency in the terms for all users of the website. The
> contract is what it is."
>
> Have you all had any luck in dealing with similar situations? Is this
> something that is not a big deal that I should just sign and overlook?
>
> Thank you in advance for any advice! Best,
> Jennifer
>
> Jennifer Castaldo
> Electronic Resources Manager/Distance Education Librarian
> Entrepreneurial Library Program
> Johns Hopkins University
> Baltimore, MD 21218
> [log in to unmask]
>
> Excelsior College Library
> [log in to unmask]
------------------------------
Date: Tue, 13 Nov 2012 14:43:07 -0500
From: LIBLICENSE <[log in to unmask]>
Subject: Re: no negotiations question
From: Ken Masters <[log in to unmask]>
Date: Tue, 13 Nov 2012 08:40:52 +0400
Hi All
It's quite easy, actually. There is no particular action, because it
includes EVERYTHING.
Given that the terms of use will include prevention of allowing
outsiders access, it simply means (for example) that the client (you)
has the responsibility of ensuring that not a single one of your staff
and students ever shares a user name and password with anyone else,
never has their computers hacked with spyware, stolen, accessed
through wifi snoopers, etc., that your entire university database of
usernames and passwords is absolutely secure, and that, if any breach
occurs that allows an outsider to access the journal, then you'll find
yourself paying a fine or in court. I mean, those are surely not
unreasonable demands (if you're working for Fort Knox or the CIA, that
is).
When you query that at the time of signing, you'll probably be told
not to worry too much about it, as those are just "fairly standard and
legal clauses" that "everyone signs." The rep will probably even crack
a silly joke about "you know how stuffy the lawyers are." When the
breach occurs, however, you'll find out just how quickly that defence
vapourises, and just how expert those lawyers actually are.
Regards
Ken
------
Dr. Ken Masters
Asst. Professor: Medical Informatics
Medical Education Unit
College of Medicine & Health Sciences
Sultan Qaboos University
Sultanate of Oman
------------------------------
Date: Tue, 13 Nov 2012 14:45:30 -0500
From: LIBLICENSE <[log in to unmask]>
Subject: Re: no negotiations question
From: Sarah Durrant <[log in to unmask]>
Date: Tue, 13 Nov 2012 12:43:14 +0000
Dear Barbara, Jennifer and fellow sufferers,
I am a publishing consultant, coach and trainer with 23 years'
experience in the information sector. Amongst other things, I
facilitate the Licensing and Negotiation Skills course on behalf of
UKSG.
From the wording you have quoted, the action is ensuring Users comply
with terms. As you suggest, this language is unreasonable since it is
not physically possible for anyone to guarantee such an undertaking.
Unfortunately, as you will be aware, this kind of language is quite
common within content licences. Typically drafted by lawyers who are
used to dealing with - indeed are paid to obsess about - certainty,
unambiguity and full compliance, publisher licences can sometimes be
blunt instruments.
My suggestion in such circumstances is always dialogue. Go back to
the service provider and explain why this wording gives you issue.
Provide detail about how your institution is organised to illustrate
why this level of compliance is not possible. Let them know what
practices you currently follow to achieve awareness and compliance
amongst your Users. It can be helpful to supply an alternative
wording which you would be able to sign (the JISC model licence can
provide wording here). As Jennifer suggests, clauses such as 'use
reasonable effort' or similar are more workable.
If the service provider proves intransigent, it may be a matter for
your legal counsel if you have one. An alternative would be to
request in writing a statement from the service provider detailing the
actions they would take should you sign and then be found liable for
non-compliance at some future point. Quite often, service providers
issue warnings and allow time for corrective action to be taken before
taking more draconian measures but much depends on the nature and
extent of any breach. The ultimate course of action of course is for
you not to sign the licence but this can amount to cutting off one's
nose to spite one's face, particularly if the resource in question is
in high demand.
It would be useful if service providers who have such clauses in their
licences could comment on what the fear or mistrust is that's driving
their approach. How much real experience do you have of significant
breach, particularly given how much libraries have done to cultivate
awareness and good practice in the area of compliance?
Similarly, it would be useful to hear from service providers who are
content with more reasonable language in their licences: what is it
you are able to trust which other content owners apparently feel they
cannot?
Regards
Sarah Durrant
Red Sage Consulting
Sarah Durrant Coaching
Office: +44(0)1728 633196
Mobile: +44 (0)7715 121910
Email: [log in to unmask]
uk.linkedin.com/in/sarahdurrant
-----Original Message-----
From: "B.E. Swetman" <[log in to unmask]>
Date: Fri, 9 Nov 2012 10:50:13 -0500
I'm also dealing with this contract and have a question about the
later portion of statement.
It says "The Client shall ensure that each User fully complies with
the terms of this Agreement (including the Terms of Use) and the
Client shall be responsible to The Economist for any failure so to
comply."
It has occurred to me that there is no particular action that we are
agreeing to be responsible to do. Does anyone know what this
"responsible to The Economist for any failure" actually means?
Barbara Swetman [log in to unmask]
Acquisitions and Serials Librarian
Hamilton College Library
Clinton, NY 13323
------------------------------
Date: Tue, 13 Nov 2012 14:46:43 -0500
From: LIBLICENSE <[log in to unmask]>
Subject: Re: no negotiations question
From: "Gibson, Sally" <[log in to unmask]>
Date: Tue, 13 Nov 2012 14:30:54 +0000
I also reached a dead end when trying to revise those statements in
the Economist license. We have not had online access to the Economist
since it was dropped from the EBSCO database. I have had no
complaints. The title was used when we had online access and I know
that convenience is a driving force for article choices. Our students
are either taking advantage of what is available on the Economist
website for free or they are choosing another source. Since the
Economist is not willing to revise their license agreement so that it
is more library friendly, I have decided to spend my money on
something else.
Sally
Sally Gibson
Head of Technical Services
Reinert Alumni Library
Creighton University
[log in to unmask]
------------------------------
End of LIBLICENSE-L Digest - 12 Nov 2012 to 13 Nov 2012 (#2012-225)
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