>>> tscott[_at_]uab.edu 04/03/03 02:27PM >>> wrote:
I have great respect for Tyler's opinion on copyright issues and agree
with him almost 100% -- however, this is not a copyright issue and this
may not be the best forum to get the best advice.
>>To repeat the central point in my original response -- if I, as an
individual librarian, take out a subscription at the individual rate,
rather than the institutional rate, and that subscription is paid for
with institutional funds, and I do it with the intention of getting a
subscription for the library while evading the higher institutional
rate, then it seems to me that I am committing fraud.
>>Tyler's analysis, however, suggests that I am not behaving
fraudulently as long as I do not explicitly claim to the publisher that
I'm actually trying to get a subscription for the library, rather than
for my personal use. (Sort of a "don't ask, don't tell" policy?)
>>This would certainly be good news to a great many librarians if that
is the case, but I'm having trouble buying it. To use the language of
Tyler's example, when I check of that "individual rate" box, am I not
"expressly misrepresenting" myself as an individual, when I am, in fact,
acting as an agent of the institution?
<<<<<
I would agree that in the fact situation you posit, checking the "individual use" box would be an express misrepresentation. Your fact situation is you are presented with a choice of two rates, and you choose one. That is an express representation, and probably creates an implied contractual promise of personal use as well.
I was thinking of a different fact situation: not subscriptions to academic journals, but educational videotapes. [Which is where I believe this thread began.] If I just log on to Amazon and buy a copy of the tape, I don't think I am making any representation as to its use, even if I am aware that the copyright owner has another authorized distributor that distributes to schools at a higher price.
So, the analysis of the fraud situation could be highly fact-specific. Mr. Plutchak's comment, "this may not be the best forum to get the best advice" is well taken. Better consult your school's legal counsel before taking action.
-----Original Message-----
From: Belvadi, Melissa [mailto:mbelvadi[_at_]maryville.edu]
Sent: Saturday, March 29, 2003 3:07 PM
To: CNI-COPYRIGHT Mail List
Subject: [CNI-COPYRIGHT] Re: "Do not sell to schools" and copyright
Tyler is saying exactly what I want to hear, which makes me cautious.
So I'd like to be more specific about my interest in this thread.
Many readers of this list may not be aware that academic libraries are
routinely charged an "institutional subscription price" for scholarly
journals that is as much as 10 times the "individual subscription
price"
(e.g. $70/year for a professor but $700/year for his/her library).
Libraries tend to purchase periodicals through a third company (which
we
call a "jobber", like EBSCO or SWETS) that handles not only our
payment/renewal paperwork but also handles for us the various "claims"
we
need to file for issues that don't arrive.
I have generally considered that in the absence of an explicit clause
in the
journal subscription terms (like the Journal of the American Chemical
Society one I mentioned in my earlier posting), that the only reason
libraries have put up with this outrageous price discrimination is
because
the labor cost to us of processing so many serials (and claims)
directly
with publishers is actually higher for most libraries with hundreds or
even
thousands of subscriptions than just paying the institutional price
plus the
jobber's fees.
But in the last 10-15 years, some for-profit publishers of scholarly
journals have gotten, well to speak subjectively, greedy, and
increased
institutional pricing far above the inflation rate, year after year
after
year, causing libraries with modest-to-none budget increases to face a
genuine crisis. (Everyone on this list knows already about the
monopoly
pricing power inherent in copyright law; that power exists to the hilt
in
the domain of scholarly publishing.)
I thought that in theory and in the absence of an explicit publisher
restriction, libraries could, if they were willing to do all that
extra
work
title by title, get individual subscriptions in the names of, for
instance,
individual librarians, and pay just the individual price. With prices
so
high in the last few years, this might finally have become a
cost-effective
option for some titles.
Am I wrong? Is there actually a serious legal ground (rather than
administrative cost one) behind why libraries do NOT just pay for
their
subscriptions individually to their librarians?
Thanks for any advice, even IANAL advice!
Melissa Belvadi
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Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu
Received on Fri Apr 04 2003 - 09:42:35 GMT
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