Not so long ago, I went through a licence - literally retyping word-by-word (it supplied in hardcopy anyway) - highlighting areas of confusion (on my part) and also terms of definition I thought were not clear and vague. One of the areas was access denial because of equipment failure. It was very vague and I wanted periods of access denial clearly stated with a percentage reduction on overall cost of the contract should service be denied to our users.
Firstly the supplier was surprised that I queried the contract in such detail, raising some re-wording queries on their side. They showed a great reluctance to agree repayment for lack of service - quoting that this was their terms and were unprepared to alter it. It was a reasonable deal to me price wise so I didn't persevere - lack of time and energy.
I got the impression from the supplier that not many libraries had gone as far as I had in querying the licence agreement.
The more we do it - the more they will have to think about the contract being a two-way process.
In many cases, we may be able to negotiate access to the same material through another supplier - with more acceptable contracts and unacceptable forms of contract can be legitimate reasons not to choose a certain supplier.
Andy Richardson
Electronic Services Manager
electronic Knowledge Access Team eKAT
London Health Libraries
20, Guilford St
London WC1N 1DZ
[log in to unmask]
tel. 0207 692 3388
mobile 07739303494
Weblog : http://andyrffc.blogspot.com/
-----Original Message-----
From: An informal open list set up by the UK Serials Group [mailto:[log in to unmask]]On Behalf Of Laurence Bebbington
Sent: 11 February 2005 14:09
To: [log in to unmask]
Subject: Re: missing issues in e-journal collections
I think my own view would be that even if 0.1% of a service was permanently unavailable (even if the the 0.1% changing frequently) then the amount is so small as not to be likely to constitute a significant or long term problem. Any supplier would not be in breach of contract in such circumstances.
The courts have shown themselves prepared to interfere more frequently in what are known as standard form contracts which may be subject to statutory controls where a supplier presents someone with something essentially on standard terms and conditions pretty much on a "take it or leave it basis" and where the exclusion clauses in the contract have been widely drawn. In some prominent cases (especially in relation to contracts for the supply of large-scale IT systems) these have been found to be unreasonable. However, there is also a line of cases which suggest that, in accordance with traditional principles of English freedom of contract, the courts will be more reluctant to interfere where the contract has been subject to reasonable negotiation and where the parties are regarded as being experienced and of reasonably equal bargaining power. So a possible problem is actually the more you negotiate the less likely a court might be to find a tailored contract unreasonable if something goes wrong and the parties disagree.
These cases refer to major, in some instances catastrophic, contractual failures where a supplier has failed to deliver on the contract, was in breach of contract in doing so but then tried to limit liability for the consequences of the failure by falling back on a standard exclusion clause.
Here, what we are talking about is so inconsequential by comparison that it's sledgehammers and nuts stuff! An "unacceptable level of service" would surely be far higher than non-availability of 0.1% of content.
The example given, in my view, would not and could not constitute a breach of contract.
Laurence
Laurence W. Bebbington
Team Leader (Law)/IS Copyright Officer
Hallward Library
Information Services
The University of Nottingham
University Park
Nottingham
NG7 2RD
Tel: 0115 95 14568
>>> [log in to unmask] 11/02/05 11:29:41 >>>
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
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