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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/
"John Cox" <John.E.Cox@btinternet.com>
Sent by: owner-liblicense-l@lists.yale.edu
Subject: RE: Institutional subscription question
I think that Scott's article in the BMLA in 2001 is very much to
the point. I would go further, and would be interested in
comments on my analysis of the legal position.
1. The personal subscriber is in breach of the contract of sale
under which the personal subscription is supplied. That there is
no written contract or terms and conditions is not necessarily
relevant. A contract can be implied from conduct, and from
evidence of custom and practice. A contract will then be implied
by the court. There is enough 'custom and practice' on personal
subscriptions for it to be clear what the terms and conditions of
supply are - you only have to look at Scott's article to see that
the position is clear and understandable.
2. While the doctrine of first sale applies in the USA (although
there appears to be no similar specific and direct provision in
most other countries' copyright laws), the library that accepts
donated copies of a journal held on personal subscription lays
itself open to legal action:
a. If it encourages faculty to donate personal subscription
copies to the library, it is inducing a breach of contract, which
is actionable. Personal subscriptions are accepted for the
individual's personal use, not for the use of library patrons in
general.
b. If it uses such donated copies as 'library copies', it lays
itself open to action for fraud.
c. If individual librarians, or the library as a matter of
policy, actively encourage faculty to make such donations in
order to 'save the library money', it is arguable that a criminal
offence may have been committed, which in the UK is called
'obtaining a pecuniary advantage by deception', or, in plain
language, fraud.
So what would be likely to happen? If a library systematically
accepts personal subscription donations and cancels its
institutional subscriptions, I predict that a group of publishers
would bring an action to stop it - i.e. an injunction. The
personal subscribers would lose their subscriptions and find it
difficult to place another personal subscription with the same
publisher(s). And the library might also face a claim for the
journal subscriptions it had knowingly replaced by such personal
subscriptions.
This exchange may well persuade journal publishers to be quite
explicit on their web sites and in each journal of the terms and
conditions that apply to personal as well as institutional
subscriptions. That would leave no doubt about the matter.
John Cox
Managing Director
John Cox Associates Ltd
Rookwood, Bradden
TOWCESTER, Northants NN12 8ED
United Kingdom
E-mail: John.E.Cox@btinternet.com
Web: www.johncoxassociates.com
-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of T Scott
Plutchak
Sent: 14 May 2008 20:41
To: liblicense-l@lists.yale.edu
Subject: RE: Institutional subscription question
I wrote about this a number of years ago in the BMLA (2001
January; 89(1): 77-78)
I'm curious to see what others might think of my analysis:
http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=31708
T. Scott Plutchak
Director, Lister Hill Library of the Health Sciences
University of Alabama at Birmingham
tscott@uab.edu
-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of B.G.
Sloan
Sent: Tuesday, May 13, 2008 6:56 PM
To: liblicense-l@lists.yale.edu
Subject: Institutional subscription question
A question came up on another list:
"Rather than have us cancel subscriptions because we can't afford
them, we have faculty who wish to donate their personal copies.
However, a question has arisen here regarding whether or not this
would be legal."
Just wondering what people think about the idea of a library
circumventing the institutional subscription cost of a journal by
accepting donated copies of the journal from a faculty member
with a personal subscription?
I'm interested in hearing what people think from a
legal/contractual perspective.
Thanks!
Bernie Sloan