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]


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