In which case (if Sally is talking about clause 5.3 - apologies if you're not) since withdrawal/removal is allowed for certain purposes under the contract then the publisher cannot be in breach as long as it remains within the scope of the clause. It would be up to the institution to claim its refund which according to the criteria would appear to be pennies - if it could even be calculated!
Laurence
>>> [log in to unmask] 11/02/05 14:09:28 >>>
There is such a clause in the PA/JISC model licence (first item at
http://www.alpsp.org/htp_licens.htm), which is currently being updated
Sally
Sally Morris, Chief Executive
Association of Learned and Professional Society Publishers
South House, The Street, Clapham, Worthing, West Sussex BN13 3UU, UK
Phone: +44 (0)1903 871686 Fax: +44 (0)1903 871457
E-mail: [log in to unmask]
ALPSP Website http://www.alpsp.org
ALPSP Learned Journals Collection (in partnership with Swets)
awarded Best STM Information Product for 2004
(http://www.alpsp.org/ALJC/default.htm)
----- Original Message -----
From: "C.Oppenheim" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, February 11, 2005 11:29 AM
Subject: Re: missing issues in e-journal collections
> Laurence makes a very fair point, but Courts have shown themselves in the
> past to be unsympathetic to over-broad waiver clauses when there is a
> long
> term problem that was not being addressed in a professional way.
>
> the library should still try for a clause which says that refunds are due
> if an acceptable level of service is not provided. Having worked on the
> licensing side of the electronic publishing industry for many years, I
> know
> that such clauses do get inserted in some contracts.
>
> Charles
>
> Professor Charles Oppenheim
> Department of Information Science
> Loughborough University
> Loughborough
> Leics LE11 3TU
>
> Tel 01509-223065
> Fax 01509-223053
> e mail [log in to unmask]
> ----- Original Message -----
> From: "Laurence Bebbington" <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: Friday, February 11, 2005 9:54 AM
> Subject: Re: missing issues in e-journal collections
>
>
> The publisher is unlikely to be in breach. Most e-content contracts have
> disclaimers or exclusions relating to uninterrupted service, temporary
> withdrawal or unavailability of content etc. These are widely drawn. They
> often only state that access to content itself or to a system is not
> likely
> to be uninterrupted for various reasons. They might include specific
> exclusions for error-correction, completeness etc. and routine maintenance
> for systems. It seems to me that one of these or something similar will
> cover the temporary unavailability of content which is damaged or
> unuseable
> in some way particularly if it is for that very essential purpose of
> restoring the content to a useable form. If the content has been hacked or
> damaged in some way making it difficult to restore or replace then perhaps
> that possibly may take some time. The exclusions are likely to cover the
> provider.
>
> A contract is only breached when one party fails to perform under the
> contract "without lawful excuse" (Treitel, Law of Contract) and that, in
> my
> view anyway, is probably not the case here - but one would need to know
> the
> precise reason for the temporary withdrawal.
>
> In my view the problem (if people felt it was a significant issue) could
> be
> addressed by different means - possibly by model service level provisions
> in
> e-content contracts. They could increasingly address the issue of
> withdrawal/replacement/unavailability and other issues. For example:
>
> - frequently libraries only discover that content has become unavailable
> when someone reports it (as in this case). All contracts should have
> provisions *requiring* publishers to advise of reasons for withdrawal in
> every case
> - the notification shoud give an indication of the reason for withdrawal
> and how long it is likely to be unavailable
> - alternatives might be offered or the supply of a paper copy at the
> publisher's expense for the user concerned
> - libraries should be notified when the content is restored
>
> However, the view might be taken that if only 0.1% of content is
> unavailable
> at any one time that that level of performance is decidedly high.
>
> Laurence
>
>
>>>> [log in to unmask] 10/02/05 16:08:49 >>>
> It seems to me that the publisher in question is in breach of its contract
> with the University; check the terms of the contract and in particular,
> what remedies there are for breach of contract. If there isn't a clause
> allowing the University to withhold part of the payment for such a
> breach,
> it should make sure thart in the next version of the contract there is
> such
> a clause!
>
> Charles
>
> Professor Charles Oppenheim
> Department of Information Science
> Loughborough University
> Loughborough
> Leics LE11 3TU
>
> Tel 01509-223065
> Fax 01509-223053
> e mail [log in to unmask]
> ----- Original Message -----
> From: "Alison McNab" <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: Thursday, February 10, 2005 3:22 PM
> Subject: missing issues in e-journal collections
>
>
> [Please note this enquiry does not relate to current or recently published
> issues or to loss of access due to non-gracing of subscriptions in
> January...]
>
> One of our academic staff at the University of Nottingham has just
> forwarded
> correspondence he has had with a major journal publisher concerning a
> missing issue of a title we subscribe to in electronic format. The
> volume
> is from 1990 and the publisher's response was to send our researcher
> information about the company's "repair and replacement procedures" for
> e-content. The publisher rtegretted that "the repair or replacement of
> content can, in some cases, take a considerable amount of time" and,
> interestingly, noted that "we currently have around 0.1% of missing
> content".
>
> Our academic, well aware of the fact that about 40% of our serial budget
> is
> spent with this particular publisher, feels that the expression of regret
> isn't good enough, and we should expect compensation from the publisher.
> I'm not sure how often users experience missing (non-current) issues of
> e-journals - I suspect that only the motivated bother to inform either
> the
> publisher or library staff. However, I'd be interested in any anecdotal
> experience list members may have, especially if you have received
> compensation.
>
> Alison
> --
> Alison McNab
> Head of Academic Services
> Research & Learning Resources Division
> Information Services
> The University of Nottingham
> University Park
> NOTTINGHAM NG7 2RD
> Tel: 0115 846 7622
> Fax: 0115 951 4558
> Email: [log in to unmask]
>
>
> This message has been checked for viruses but the contents of an
> attachment
> may still contain software viruses, which could damage your computer
> system:
> you are advised to perform your own checks. Email communications with the
> University of Nottingham may be monitored as permitted by UK legislation.
>
> This message has been checked for viruses but the contents of an
> attachment
> may still contain software viruses, which could damage your computer
> system:
> you are advised to perform your own checks. Email communications with the
> University of Nottingham may be monitored as permitted by UK legislation.
>
> ______________________________________________________________________
> This email has been scanned by the MessageLabs Email Security System.
> For more information please visit http://www.messagelabs.com/email
> ______________________________________________________________________
This message has been checked for viruses but the contents of an attachment
may still contain software viruses, which could damage your computer system:
you are advised to perform your own checks. Email communications with the
University of Nottingham may be monitored as permitted by UK legislation.
|