Re: Institutional subscription question

[Peter Hirtle <pbh6@cornell.edu>]

Kevin Smith appears to be nervous about the suggestion that there 
can be implied licenses in a sales contracts that can trump the 
first sale doctrine of copyright law; I have a question about a 
different implied license.

I have often heard Lolly Gasaway state that libraries agreed to 
differential pricing of journal subscriptions in recognition of 
the fact that journals in libraries are used more intensively 
than individual subscriptions.  Multiple people could read an 
issue, and it is likely that multiple copies of individual 
articles will be made, both by individuals and for classroom use. 
In this environment, differential pricing became a de facto site 
license. Libraries paid more for subscriptions because there 
would be multiple uses of the material.

We are in a situation now where publishers seem to want to charge 
differential rates for institutional subscriptions and also 
charge for individual uses of articles (such as for classroom 
use) that had previously been covered by the institutional rate. 
We have suggested that a library that attempted to subscribe to 
journals at the individual rate would be engaged in fraudulent 
practice. Are publishers who insist on payments for individual 
uses when an institutional rate has been paid also in fraudulent 
disregard of the implied license?

Peter B. Hirtle
CUL Intellectual Property Officer
Technology Strategist
Cornell University Library
Ithaca, NY
peter.hirtle@cornell.edu