There is often a contract between the individual, who receives his/her subscription on the basis that it is for the individual's use only, and the publisher. The personal subscriptions I have include that in their contracts with me, and I am happy to abide by them.
We all seem to be agreed that we wouldn't go there, but for varying reasons!
Charles
________________________________________
From: An informal open list set up by UKSG - Connecting the Information Community [[log in to unmask]] On Behalf Of Bebbington, Laurence W [[log in to unmask]]
Sent: 19 November 2010 17:04
To: [log in to unmask]
Subject: Re: [lis-e-resources] Journal resources/prices: individual versus institutional
A few points on this.
In the first scenario summarised by John, where an individual has, even over time, donated a personal copy to a library without any formal or informal arrangement then I cannot see how this can possibly be a breach of copyright (which John seemed to suggest), nor inducing a breach of contract. I doubt that the necessary conditions for inducement exist. Some academics do this in a disorganised/belated way, leaving libraries with incomplete holdings. To suggest that they cannot do it is in my view wrong. It seems to be equivalent to say you cannot donate a copy of a book you have bought and finished with, to a library.
However, where a library and an individual actively collude to do this, like Charles I would see this as a different matter. I still doubt that it is inducement to a breach of contract (I'd ask - is there even a contract?). If not there cannot be a breach of it. It could, however, constitute the tort of causing loss by unlawful means - and that's why I wouldn't go there.
Laurence
Laurence W. Bebbington
Deputy Librarian and Head of Library Services
Library and Historic Collections
Queen Mother Library
The University of Aberdeen
Meston Walk
Old Aberdeen
Aberdeen
AB24 3UE
Tel: 01224 272596
-----Original Message-----
From: An informal open list set up by UKSG - Connecting the Information Community [mailto:[log in to unmask]] On Behalf Of C Oppenheim
Sent: 19 November 2010 15:23
To: [log in to unmask]
Subject: Re: [lis-e-resources] Journal resources/prices: individual versus institutional
we are!
Charles
________________________________________
From: An informal open list set up by UKSG - Connecting the Information Community [[log in to unmask]] On Behalf Of John Cox [[log in to unmask]]
Sent: 19 November 2010 15:19
To: [log in to unmask]
Subject: Re: [lis-e-resources] Journal resources/prices: individual versus institutional
I would just like to clarify what I said about the possibility of an
institution rendering itself liable to a claim for inducing breach of
contract - my third point.
This was made as a direct answer to the specific question posed by Frank
Trew in his original posting: 'Has anyone opted to go down a route of
individual subscription (as opposed to institutional one), with a
presumption that the "individual" would then donate their "personal" copies
to the library? The premise being that the individual subscription is very
often much cheaper that the institutional one.' That looks very much like a
library arranging with an individual to take out an individual subscription
with a view to transferring it immediately to the library. On those narrow
grounds I will adhere to the point that I made.
Of course, if the library is simply the recipient of an unsolicited gift,
there is no question of liability. I think that Charles and I are on the
same page.
John
John Cox
Managing Director
John Cox Associates Ltd
Rookwood, Bradden
Towcester, Northamptonshire
NN12 8ED
United Kingdom
Tel: +44 (0) 1327 861184
Fax: +44 (0) 20 8043 1053
E-mail: [log in to unmask]
Web: www.johncoxassociates.com
-----Original Message-----
From: An informal open list set up by UKSG - Connecting the Information
Community [mailto:[log in to unmask]] On Behalf Of C Oppenheim
Sent: 19 November 2010 13:36
To: [log in to unmask]
Subject: Re: [lis-e-resources] Journal resources/prices: individual versus
institutional
If the library accepts these donations, then I agree there is no breach of
copyright and I am dubious about the notion that it was inducing a breach of
contract. BUT the publisher is perfectly entitled to (1) refuse to have the
individual as a subscriber ever again - so the supply to the library dries
up fast - AND could refuse to supply other titles to the library which that
library currently has as institutional subscriptions from the same
publisher. So whilst I don't think the library accepting copies is illegal
in the way John describes, it is such a foolish course of action that I
totally agree with his conclusion:
don't go there
and indeed I would put it more strongly:
don't even think of going there
Charles
________________________________________
From: An informal open list set up by UKSG - Connecting the Information
Community [[log in to unmask]] On Behalf Of Eileen Jamieson
[[log in to unmask]]
Sent: 19 November 2010 13:11
To: [log in to unmask]
Subject: Re: [lis-e-resources] Journal resources/prices: individual versus
institutional
I agree with the first and second options, but the third one is
questionable. I don't immediately see what grounds the publisher would have
for legal action against the library in the case of unsolicited donations.
There may be one, but the ones mentioned don't seem to be applicable. There
is no "breach of copyright" in this situation as the originals have been
donated and no copying is involved. "Inducing breach of contract" would only
apply if a library had asked the donor to purchase the journal on its
behalf, but not if it didn't and the library wouldn't be in breach of
contract itself since it didn't have one. However, asking an individual to
purchase a journal for a library is another matter entirely. I wouldn't
advise it.
Regards
___________________________________________
Eileen Jamieson
Serials and Information Librarian
Email: [log in to unmask]
Tel: +44 (0)20 7432 0999
Fax: +44 (0)20 7439 3470
Web: www.geolsoc.org.uk/gsl/info
The Geological Society
Burlington House
Piccadilly
London
W1J 0BG
-----Original Message-----
From: An informal open list set up by UKSG - Connecting the Information
Community [mailto:[log in to unmask]] On Behalf Of Raewyn Adams
Sent: 18 November 2010 19:30
To: [log in to unmask]
Subject: Re: [lis-e-resources] Journal resources/prices: individual versus
institutional
I fully agree that the first and second options are likely and reasonable
courses of actions. I wonder about the third.
Libraries receive a lot of donations and I would think accept these
donations in good faith. So if someone offers to donate a print copy of a
journal, would you expect the library to give them the third degree about
whether they do own those print copies and have the right to give them to
whom they wish, or whether there's a clause in their society membership that
specifies that the print copies may not be used by or passed to anyone else?
If there is such a clause and the member is breaching it by donating a
personal print copy, surely that is a matter between the subscriber and the
publisher and nothing to do with the library concerned?
Regards
Raewyn
Raewyn Adams
Librarian BOP Clinical School
Tauranga Hospital Library
Bay of Plenty District Health Board
Private Bag 12024, Tauranga 3143, NZ
-----Original Message-----
From: An informal open list set up by UKSG - Connecting the Information
Community [mailto:[log in to unmask]] On Behalf Of John Cox
Sent: Thursday, 18 November 2010 09:59 PM
To: [log in to unmask]
Subject: Re: [lis-e-resources] Journal resources/prices: individual versus
institutional
When publishers set individual and institutional subscription prices, there
are conditions attached. While the institutional subscription assumes
unlimited access by all those entitled to use the institution's library, the
individual subscription rate comes with the condition that the journal is
for the personal use of the subscriber only. If the individual subscriber
passes his/her copies to the library for access by all, he/she is in breach
of those conditions - i.e. in breach of contract.
What would a publisher do in those circumstances? My experience as a
publisher and as a subscription agent over 40 years indicates that
publishers could take the following steps:
Firstly, it would write to the individual subscriber pointing out the breach
of conditions and ask him/her to cease and desist.
Secondly, it could suspend the dispatch of the remaining issues due under
that subscription until the matter had been resolved.
Thirdly, the publisher might write to the library pointing out that using
such copies as part of the library collection is not allowed under the terms
of the individual subscription and that the library's conduct could be
subject to legal action (inducing breach of contract, breach of copyright
etc).
Most librarians I know want to be good copyright citizens. Most
institutions want to avoid unnecessary legal liabilities. Most publishers
would be horrified at the prospect of taking action against their customers,
but have to protect their businesses. I am astonished that this issue has
been raised in these terms. Don't go there.
John Cox
Managing Director
John Cox Associates Ltd
Rookwood, Bradden
Towcester, Northamptonshire
NN12 8ED
United Kingdom
Tel: +44 (0) 1327 861184
Fax: +44 (0) 20 8043 1053
E-mail: [log in to unmask]
Web: www.johncoxassociates.com
-----Original Message-----
From: An informal open list set up by UKSG - Connecting the Information
Community [mailto:[log in to unmask]] On Behalf Of Frank Trew
Sent: 17 November 2010 17:06
To: [log in to unmask]
Subject: [lis-e-resources] Journal resources/prices: individual versus
institutional
There has been some activity recently concerning the rising cost of
journals,
with publishers hiking their prices, and institutions bemoaning the
straitened
financial circumstances under which we are having to operate.
My question to the group is this:
Has anyone opted to go down a route of individual subscription (as opposed
to institutional one),
with a presumption that the "individual" would then donate their "personal"
copies to the library?
The premise being that the individual subscription is very often much
cheaper that the institutional one.
I realise this is a potential minefield (and I may not be wearing sufficient
armour to deal with the flak!)
But surely, such an approach would not be illegal, would it, even though
there might be moral qualms
about it? Of course, any online access that came with the subscription would
really be just for the
individual, and not be available institution wide. But if we could live with
that, are there any reason
why we shouldn't do this?
Just thought I'd ask...
Frank Trew
College Librarian
Rose Bruford College of Theatre and Performance
Frank Trew
Librarian
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