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]
>
>
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