[ILL-L] E-Journal Contracts and ILL Rules

[Fearer, Kathleen E (EED)]

I would not necessarily interpret this provision as requiring the
licensee, as a lending library, to undertake the obligations of the
borrowing library.  The lending library does have some minimal copyright
obligations in ILL.  Section 108(a)(3) requires that a reproduction or
distribution include a notice of copyright (I think this applies to
lending libraries, but let me know if it doesn't).  And lending
libraries in practice typically require a representation from borrowing
libraries about compliance with copyright law and CONTU guidelines.
While a licensor can impose additional requirements on a licensee
through a license agreement, the clause you describe might not clearly
do that.  One option may be to interpret the copyright clause in the
license agreement as applying to the general requirements and practices
copyright law and guidelines impose on lending libraries.  [I'm not
recommending that you do this though, and I need to give the typical
disclaimer about this not being legal advice and say that I'm not
qualified to give legal advice.]

As to the two options for providing articles, with option 2, it looks
like the publisher is trying to require the lending library to police
(or produce information that will help the publisher police) borrowing
libraries.  This is unreasonable, and hopefully publishers won't begin
to make this a practice.  I'm pretty new in the ILL and licensing worlds
(even the library world), but I've been surprised at the changes to
license agreements publishers are willing to make.  But while we've
successfully renegotiated contract terms in license agreements,
including ILL terms, none of them have ever been like the term you
describe.  If the publisher does not change the ILL term in the
contract, option 1, though not ideal, does look workable.  

Good luck with this one!


Katie Fearer
Librarian, Interlibrary Loan and Periodicals
Alaska State Library
907-465-2988


-----Original Message-----
From: ill-l-bounces at webjunction.org
[mailto:ill-l-bounces at webjunction.org] On Behalf Of Andrea Schurr
Sent: Wednesday, December 12, 2007 7:07 AM
To: Interlibrary Loan Listserv
Subject: [ILL-L] E-Journal Contracts and ILL Rules

We are in the process of subscribing to a particular e-journal and are
concerned with the interlibrary loan restrictions in the contract.  The
publisher provides us with two bad options.  In both options we would be
contractually obligated to fill ILL requests "in compliance with Section
108 of the Copyright Act of the U.S. and be within the CONTU"
guidelines.  This makes it seem that we would be required to track on
the CONTU and Copyright compliance of the libraries that borrow from us
- which it seems to me is nearly impossible.  

That issue aside, we have a choice between:
1) Printing off copies from the electronic database and handling them
like we would ILL's from a paper journal - with no additional
stipulations.  

Or 

2) Using electronic copies directly from the e-journal, but with a
stipulation that we can only lend articles to "academic libraries for
educational purposes" and that we must submit a biannual report of
libraries that we lend this journal to and the # of articles requested.


I was wondering how others out there have dealt with this sort of issue.
Which option have you chosen?  How have you dealt with tracking on the
copyright compliance of other libraries?  And, if you've dealt with
restrictions like are present in option #2, how have you tracked on the
"academic library" stipulation? Alternately, has anyone successfully
renegotiated a contract like this one to provide more reasonable terms?


Thanks for your time and input!
Andrea

--
Andrea Anderson Schurr
Assoc. Prof. and Head, Access Services
Lupton Library, Dept. 6456
University of Tennessee at Chattanooga
Phone: 423-425-2668
Fax: 423-425-4775
Email: Andrea-Schurr at utc.edu 


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