In many cases in our lives, no explicit contract exists as such. There
is a special set of laws, which includes the Uniform Commercial Code,
which defines laws regarding commercial interactions where there is no
explicit contract. The law also allows for implicit contractual terms,
like "fitness for use" (it's assumed when someone sells you a ladder
that you can safely climb on it in the normal way). Some contracts are
what are sometimes called "shrinkwrapped" - you don't explicitly sign a
piece of paper and you have no opportunity to negotiate, but somewhere
on the terms of sale are the additional terms that govern the sales'
contractual rules. I think any publisher would argue reasonably that
simply listing the individual price and the institutional price side by
side creates such terms, and thus it would be a violation of the terms
of sale for you to misrepresent yourself as an individual when you were
actually buying a subscription for the library with the library's funds.
However, that's a totally different situation from asking a professor
who bought an individual subscription in his/her own name and with
his/her own funds to donate the issues to you. I think the original
message talked about the library giving money to the professor to have
the professor buy it and then donate it. In this situation, I would
think the publisher would have a strong claim that the professor (but
not the library) violated the terms of the implicit contract through
fradulent misrepresentation. This is more the equivalent of your example
of misrepresenting yourself as under 12 at the movies (by the way, your
movie ticket may have a HUGE contract in tiny print on the back). But
there's a legal world of difference that comes down to who technically
purchased the subscription, which in turn comes down to the combination
of whose name is the subscription under and whose funds actually paid
for it (the latter probably having the most weight).
If anyone knows of any court cases that have actually adjudicated the
issue as to whether the exchange of money between library and subscriber
creates a fraudulent purchase situation in this context, I'd love to
hear about it.
People work to "circumvent" unfavorable contract terms all the time.
Those efforts fall into two different categories: legal ones (which we
often call "loopholes") and illegal ones (which we usually call
"fraud").
In a for-profit business arrangement, you should feel entirely ethically
free to exploit any genuine ("legal") loopholes you can find to the
betterment of the institution to whom you owe your fiduciary loyalty.
Consider whether indulging in your sense of ethics towards a for-profit
publisher is endangering your ethical obligation to your non-profit
employer not to waste your employer's resources.
Melissa Belvadi
Systems and Services Librarian
Maryville University Library
13550 Conway Rd., St. Louis, MO 63141
mbelvadi@maryville.edu
314-529-9531
Fax: 314-529-9941
-----Original Message-----
From: SERIALST: Serials in Libraries Discussion Forum
[mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Kim Maxwell
Sent: Friday, June 02, 2006 8:33 AM
To: SERIALST@LIST.UVM.EDU
Subject: Re: [SERIALST] Institutional versus personal subscriptions
I'm curious what sort of contract exists when you buy print (and that's
what we're talking about here, *not* electronic). I can't think of a
single print subscription we have (either for my institution or my
personal copies at home) where an actual contract exists. I've
certainly never signed a contract, and I can't think of where any sort
of implicit terms might be located.
The only "terms" I can think of are the publisher's catalog that lists
the prices of the journals. In that catalog, prices are listed for both
institutional and personal subscriptions. Given that I know there are
different prices, and given that I know I'll be using the subscriptions
at an institutional level, it seems disingenous of me to purchase at the
personal level. Is it legal? I have no idea; I haven't even thought
about the legal issues (to be perfectly honest) because my ethics
stopped me first. As I stated before, whether we agree with the pricing
differential or not is irrelevant to this specific point. Work to
change pricing policy, but don't circumvent it. Until the pricing policy
changes, work within it.
You said "There's no need for librarians to gift them [the publishers]
with any more rights than they are already entitled to out of a
misplaced sense of "fairness"." I don't believe I am doing that. The
price list says institutions pay this, individuals pay that. Is it
right for me to go to a movie theater and buy a kids ticket even though
I'm much older than 12? No, it isn't. Is it legal? Is there a contract
surrounding what kind of ticket I buy? No, there isn't. But I know that
I shouldn't be buying a kids ticket for myself. There are different
prices at the movie theater for kids, adults, and senior citizens, and
there are different prices for journals.
Kim
_________________________________________________
Kim Maxwell
Serials Acquisitions Librarian
Associate Head, Acquisitions & Licensing Services Massachusetts
Institute of Technology MIT Libraries, Room 14E-210
77 Massachusetts Ave.
Cambridge, MA 02139-4307
phone: 1-617-253-7028
fax: 1-617-253-2464
email: kmaxwell@mit.edu
> -----Original Message-----
> From: SERIALST: Serials in Libraries Discussion Forum
> [mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Belvadi, Melissa
> Sent: Thursday, June 01, 2006 5:47 PM
> To: SERIALST@LIST.UVM.EDU
> Subject: Re: [SERIALST] Institutional versus personal subscriptions
>
> There seems to be a great deal of confusion out there are about the
> concepts of legality, ethics, and contractual obligations.
>
> A subscription to a periodical is a contract between buyer and seller.
> All of these questions raised on this thread recently should come down
> to: what are the terms of the contract between the buyer
> (subscriber) and seller (publisher)? If the contract explicitly
> forbids the buyer to donate the periodical issues to an institution,
> then the buyer would be in violation of the contract if they did so
> and subject to lawsuit or whatever other remedies might be included in
> the contract.
> Since the library is not a party to the contract, the library has no
> legal issues
> at all, and I would argue, no ethical ones either. Some
> journals have
> such terms. Those who do not are then subject to the first sale
> doctrine, which most certainly DOES apply to periodicals every bit as
> much as books. The first sale doctrine (which is explicitly codified
> in US law, not just a vague principle) says that once you buy a copy
> of a copyrighted work, you can do whatever you want with your physical
> copy, except make copies (and related derivations). So you can give it
> to a library. Contracts supersede legal rights - a professor can sign
> away his/her first sale doctrine rights in order to obtain a
> subscription.
> But if the contract is silent on the issue, the statutory law is in
> force. Copyright law is about making new copies of a protected work,
> not about the disposition of legally created copies and has absolutely
> nothing to do with the issue being discussed in this thread.
>
> The only ethical issue I see is for a library who tried to pressure a
> member of their community into violating a subscription contract.
> Periodical sales are a business, and a very large and profitable one
> for some companies at that. You can be sure that Taylor&Francis,
> Elsevier, etc. have plenty of lawyers looking out for their interests
> and their interests are also protected by the massive monopoly power
> granted under national and international copyright law. There's no
> need for librarians to gift them with any more rights than they are
> already entitled to out of a misplaced sense of "fairness".
>
> In the specific example of the gyn group below, one has to look at the
> terms of the membership/subscription contract signed/agreed to by the
> doctors. But it's important to understand that if the doctors violate
> the contract, that's not a violation by the library because the
> library isn't a party to the contract. That's a really important point
> that can't be emphasized enough.
>
> Other respondents on this thread have itemized excellently the
> practical concerns for libraries in dealing with donated serials so I
> won't repeat those points.
>
> Melissa Belvadi
> Systems and Services Librarian
> Maryville University Library
> 13550 Conway Rd., St. Louis, MO 63141
> mbelvadi@maryville.edu
> 314-529-9531
> Fax: 314-529-9941
>
>
> -----Original Message-----
> From: SERIALST: Serials in Libraries Discussion Forum
> [mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Devereaux, MaryJo
> Sent: Thursday, June 01, 2006 6:49 AM
> To: SERIALST@LIST.UVM.EDU
> Subject: [SERIALST] PlainZix RE: [SERIALST] Institutional versus
> personal subscriptio ns
>
> What about when all physicians in the group obtain a copy of the same
> journal because they are members of an organization and have one of
> those membership journals sent directly to the library instead of the
> office. For example, members of a GYN group who each get Am j of
> obstet gynec and have that sent to us. [Which has been proposed], is
> that an acceptable "donation"
> since the journal comes with membership??
>
> MaryJo Devereaux, M.L.S.
> Community Medical Center
> Physician's Library
> 1800 Mulberry Street
> Scranton PA 18510
> v. 570-969-8197
> f. 570-969-8902
> maryjo.devereaux@cmchealthsys.org
>
>
>
>
> -----Original Message-----
> From: Pennington, Buddy D. [mailto:penningtonb@UMKC.EDU]
> Sent: Wednesday, May 31, 2006 3:11 PM
> To: SERIALST@LIST.UVM.EDU
> Subject: Re: [SERIALST] Institutional versus personal subscriptions
>
>
> I believe it is perfectly fine under the first sale doctrine.
> It would be like someone purchasing a book and then immediately
> donating that book to the library.
>
> Like Lee Ann, we also have some titles where faculty donate their
> issues to the library. And we also have problems such as getting the
> issues in a timely manner and not getting all the issues. Therefore,
> we have internally coded these titles as personal gift titles and we
> have a public note that indicates that since these are personally
> donated, we typically get them later than usual and that we often do
> not get all the issues for a particular volume.
>
> So, to make a long story short, the physicians are within their rights
> to donate these to your library and you can use them. However, there
> is usually a downgrade in the service you'll be providing your users
> (getting the issues later than subscribing libraries or not getting
> all the issues).
>
>
>
> Buddy Pennington
> Serial Acquisitions Librarian
> UMKC - University Libraries
> 800 E. 51st Street
> Kansas City, MO 64110
> 816-235-1548
> 816-333-5584 (fax)
> penningtonb@umkc.edu
>
> UMKC University Libraries: Connecting Learners to the World of
> Knowledge
>
> www.umkc.edu/lib
>
>
> -----Original Message-----
> From: SERIALST: Serials in Libraries Discussion Forum
> [mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Howlett, Lee Ann
> Sent: Wednesday, May 31, 2006 1:34 PM
> To: SERIALST@LIST.UVM.EDU
> Subject: Re: [SERIALST] Institutional versus personal subscriptions
>
> We've had various physicians do this for us over the years by
> subscribing and then immediately giving us the issue when it arrives.
> Unfortunately, it never seemed to work out. We never managed to
> obtain all of the issues for a volume from anyone.
>
> People mean well when they offer to do this but, in my experience,
> something always happens where they either forget to send an issue on
> or they wanted to keep just 'that one'.
>
> Sincerely,
> Lee Ann Howlett
> _________________________________
> Lee Ann Howlett, MA
> Head, Serials, Dept.
> Shimberg Health Sciences Library
> University of South Florida
> 12901 Bruce B. Downs Blvd., MDC 31
> Tampa, FL 33612
> (813) 974-9080
> (813) 974-7032 (fax)
> Email: LHOWLETT@HEALTH.USF.EDU
>
>
> -----Original Message-----
> From: SERIALST: Serials in Libraries Discussion Forum
> [mailto:SERIALST@LIST.UVM.EDU] On Behalf Of Bluhm-Stieber, Hella
> Sent: Wednesday, May 31, 2006 12:27 PM
> To: SERIALST@LIST.UVM.EDU
> Subject: [SERIALST] Institutional versus personal subscriptions
>
>
> Hello all,
> We are facing severe budget cuts and need to cancel half of our
> journal subscriptions. The suggestion was made to ask for donations
> from physicians who subscribe to certain journals the library needs.
> We are concerned about the legal implications of this. We explained to
> our management that we think that this is against copyright law.
> One problem is that the doctors can pay for subscriptions through
> their educational fund, but cannot donate money from it.
>
> We think that the donors would have to pay for an institutional copy
> in order that we can use it in the library. I would be grateful for
> any suggestions or documentation why this is o.k. or not o.k.
>
> Thank you very much,
> Hella Bluhm-Stieber
>
> Hella Bluhm-Stieber, MLIS, AHIP
> Medical Librarian
> Milton J. Chatton Medical Library
> Santa Clara Valley Health & Hospital System
> 751 S. Bascom Ave.
> San Jose, CA 95128
> (408) 885-5654
> Fax (408) 885-5655
>
>
>
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