[Eril-l] question about license agreements & ILL - SUMMARY - Follow up

Mon Apr 9 08:13:37 PDT 2018

Good morning,

Thank you again to all who replied - I was able to get the vendor to change the license to permit ILL!  I'm very grateful for the help of this list. Score one for libraries!!

Elizabeth

From: Elizabeth Wright, MLS
Sent: Wednesday, March 28, 2018 1:35 PM
To: 'eril-l at lists.eril-l.org' <eril-l at lists.eril-l.org>
Subject: question about license agreements & ILL - SUMMARY

Hello everyone,

Again, my thanks for all the wonderful responses I received to this question. I feel much more empowered to deal with this situation.  Here is a summary of those responses.

Thank you!
Elizabeth
___________________________________________________________________________________________

We refuse to sign any such agreement. If you absolutely must have it, at least register your objection in writing to the vendor; make your dissatisfaction known. They should know they are the outliers. Do they have competition that allows ILL? You might also mention that.

You can modify the agreement (or have your campus attorneys do so) and return it to the vendor with a request for them to agree to the modified terms.

That's a fairly common restriction for a "database" (vs. an e-journal subscription). It's likely because the database vendor doesn't really own the content and they're paying pennies on the dollar to the publisher. My typical stance is we don't loan database article content and with e-journals we check the license to see if it's allowed. You can try to have them agree to it, but I doubt they will. An e-journal provider might be more likely to agree, but may have restrictions on HOW you may do it. Some still require you to print it out and send it.

... It would also be a nightmare to track what you've loaned and how often etc. to meet some criteria of "not substantial portions of data, i.e. less than 10%". To me it's not worth the hassle and it's often likely others have access to the database also.

These are tough to deal with. Some of the resistance on ILL comes from European publishers, who don't realize that ILL is written into US copyright law. I've sometimes had success simply showing them that fact -- https://www.law.cornell.edu/uscode/text/17/108. In essence, they are asking you to waive one of your legal rights, in return for NO COMPENSATION. You might ask them for a deep discount to represent what you are being asked to give up ... if the price tag is high enough, maybe they'll buckle.

This hostility to ILL is deeply engrained in publisher organizations like STM https://www.stm-assoc.org/ ... in practice, sales reps are sometimes less wedded to the principle that STM claims to be upholding.

In the end, sometimes only a statement that you will cancel the deal will get them to budge (and some of the biggest names still won't). If this is a smaller publisher, it may work. I have standing instructions from my director to refuse all agreements with that clause, so I fall back on that. This is where it can help to have a third party "behind the curtain" at your institution - a provost or academic VP or dean. If you can state that the person you report to has instructed you to walk away from such deals, it may work. It's tricky: you don't want to bluff, it needs to be a genuine threat.  If you can identify an alternative source, that of course is another kind of lever you can use.

Sometimes we can have a license rewritten so that it is simply silent on the topic of ILL, or says that our use of the product will conform to what is legal. The publisher can believe what they want, and we can believe and do what the law entitles us to do. Your sales rep can be an ally: they want to make the sale, and usually don't care about the "principle".

We always try to negotiate ILL and scholarly sharing, but occasionally accept no-ILL provisions for business-type licenses that have to do with data or analyst reports.

There are some providers such as in business or engineering that won't budge on this.  If it's a 'must have' for your library, there may not be  much you can do.

Our practice is to ask them to change this. This is language we recommend they put in the license.

"Customer shall be permitted to use reasonable portions of the journal/databases to fulfill occasional requests from other institutions, a practice commonly called Interlibrary Loan. Customer agrees to fulfill such requests in compliance withSection 108 of the United States Copyright Law (1 7 USC Q 108, "Limitations on exclusive rights: Reproduction by libraries and archives") and the Guidelines for the Proviso of Subsection 108(2g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU).

From: Eril-l [mailto:eril-l-bounces at lists.eril-l.org] On Behalf Of Elizabeth Wright, MLS
Sent: Friday, 23 March 2018 8:13 AM
To: eril-l at lists.eril-l.org<mailto:eril-l at lists.eril-l.org>
Subject: Re: [Eril-l] question about license agreements & ILL

My sincerest thanks to all who've replied. I've received wonderful wisdom and advice, and would be glad to summarize for the list if there's interest.

Thank you so much!

Elizabeth

From: Elizabeth Wright, MLS
Sent: Thursday, March 22, 2018 1:15 PM
To: 'eril-l at lists.eril-l.org' <eril-l at lists.eril-l.org<mailto:eril-l at lists.eril-l.org>>
Subject: question about license agreements & ILL

Hello everyone,

As a newer library director who's been putting together a library from the ground up for the last year, I'm encountering my first license agreement (for a large electronic database) that prohibits using any content for interlibrary loan.

No other agreement I've had up to this point had such a prohibition so I've not had to address this with a vendor before.  What is the best way to handle this?  We need this resource but I find it unacceptable for the vendor to prohibit use for ILL.

Thank you,
Elizabeth

Elizabeth Wright
Director of Library Services
Arkansas College of Osteopathic Medicine
7000 Chad Colley Blvd.
Fort Smith, AR 72916
(479) 308-2303
elizabeth.wright at arcomedu.org<mailto:melizabeth.wright at arcomedu.org>

[Arcom for sig]

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