RE: Institutional subscription question

["B.G. Sloan" <bgsloan2@yahoo.com>]

And as the originator of this thread I did not mean to imply it 
was a widespread practice among libraries, or even a workable 
practice. I was involved in a discussion of this issue on another 
list, and thought you all would be a good group to touch base 
with. And I was correct...the folks on the other list really 
liked Scott Plutchak's essay.

Thanks again!

Bernie Sloan


--- On Mon, 5/19/08, John Cox <John.E.Cox@btinternet.com> wrote:

> From: John Cox <John.E.Cox@btinternet.com>
> Subject: RE: Institutional subscription question
> To: liblicense-l@lists.yale.edu
> Date: Monday, May 19, 2008, 5:15 PM
>
> Oh dear!  Kevin, my comments were not intended to be an 
> "over-reaction and alienation of one's own customers.  I was 
> responding to a specific query about the legal status of such 
> donations.  That is not the same as a threat, but a simple 
> assessment of the legal position.  One of the reasons why you 
> and I may not wholly agree on that position is that there is 
> little case law simply because publishers and libraries do not 
> litigate except in the most extreme cases.  The scholarly 
> publishing system exists on trust, and on an assumption that 
> suppliers and customers behave ethically.
>
> I entirely agree that accepting such donations is not 
> widespread, is not practical for libraries, and in any case is 
> acknowledged by the vast majority of librarians as unethical. 
> I did not raise this issue, which I have always thought to be a 
> phenomenon of minor importance, and do not wish to prolong it.
>
> John Cox
> Managing Director
> John Cox Associates Ltd
> E-mail: John.E.Cox@btinternet.com
> Web: www.johncoxassociates.com
>
> -----Original Message-----
> [mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of
> Kevin L Smith
> Sent: 16 May 2008 23:58
> To: liblicense-l@lists.yale.edu
> Subject: RE: Institutional subscription question
>
> The right of first sale is indeed recognized in most countries, 
> although it is usually referred to as the doctrine of 
> "exhaustion," meaning that the exclusive right to distribute an 
> particular copy of a protected work is exhausted by the first 
> sale of that particular copy.  The "Doha Declaration" of 2001 
> that interpreted the TRIPs agreement (international trade 
> agreement on intellectual property binding on all members of 
> the World Trade Organization) explicitly confirmed recognition 
> of exhaustion by TRIPs, leaving it to member countries to 
> determine the scope of the doctrine.
>
> The threat that journal publishers should start insisting on 
> contracts that would abrogate this doctrine for individual 
> subscribers is another example of overreaction and alienation 
> of one's own customers.  The clear message of this thread all 
> along has been that libraries do not accept this practice, at 
> least in any systematic way, so this threat seeks to solve a 
> nonexistent problem.  And Mr. Cox has not replied to the 
> question of whether it is similarly "breach of contract" as he 
> understands it if a long-time subscriber donates her backrun of 
> a journal to an institutional library upon her retirement.
>
> It is very easy to assert that there is some kind of implied 
> contract whenever one subscribes to a journal, but "course of 
> dealing" is not at all clear here, and there are statutory 
> provisions like first sale (or exhaustion) that would seem to 
> contradict the claim about implied terms. At its most 
> fundamental, first sale is simply an extension into the IP 
> realm of the very ancient principle of the free alienability of 
> property; I think most courts would be very reluctant to find, 
> on the basis of mere implication, that bona fide purchasers 
> cannot sell, lease or donate their own purchased property at 
> will.
>
> Kevin L. Smith, J.D.
> Scholarly Communications Officer
> Perkins Library, Duke University
> Durham, NC  27708
> kevin.l.smith@duke.edu
> http://library.duke.edu/blogs/scholcomm/