[CNI-COPYRIGHT] Re: "Do not sell to schools" and copyright

At 05:30 PM 4/5/2003 -0500, Michael Webster wrote:

><snip>
>The good news is that the institutional pricing arrangements provide
>additional support for "fair use" practices in libraries of not-for-profit
>institutions. In my opinion, the payment of institutional subscription
>prices further justifies the placement of journal articles on both print
>and electronic reserves. It puzzles me why academic librarians pay
>royalties to place articles on reserve when they have already implicitly
>contracted with publishers for these very uses.

Only a relatively few journals, specifically those aimed at individual subscribers, such as those published by societies, Nature, Cell and other such journals, have differential pricing. This is by no means a universal phenomenon. Whether such an agreement as you propose is implicit or not, even in cases where differential pricing is applied, is arguable, to say the least, and such a contention would have to be tested in court before it was proven. Most libraries would find this too flimsy a base to test in a court of law against a major publisher, such as the Wall Street Journal, which charges quite hefty royalty fees. Please do have your library test this principle and we'll see what happens.

>By the way, there is no law that states that materials can be placed on
>reserve for only one semester. The only reference to a one term
>limitation is in the legislative history that incorporates the "Guidelines
>for Classroom Copying" that were never intended to apply to libraries.
>I recommend that all librarians review the comments of Professor L. Ray
>Patterson in his interview with Carrie Russell, copyright specialist for
>the American Library Association, which are available at
><http://copyright.ala.org/pattersonq&a.html>http://copyright.ala.org/pattersonq&a.html
>.

In the first place, libraries generally place things that haven't yet gained publisher permission to be placed on reserve, while permission is sought. Ray Patterson is a wonderful man with quite liberal opinions in this area. Unfortunately, he is now retired and his national and international following among publishers is far too limited, I'm sure. Perhaps somebody like Larry Lessig would be willing to argue this point in the courts, but after his lack of success in overturning the copyright extension act, I wouldn't give him even money in a case based on this premise either.

>The moral to the story is that libraries should never consider placing
>individual subscriptions in the library collection. This would definitely
>constitute fraud and vitiate any "fair use" rationale.

Can you point to any case law to support this remarkable statement? Replacement of a worn or lost copy of a journal that the library subscribes to from donated personal issues is commonplace. Fraudulent use of personal copies as a replacement for library subscriptions is highly illegal.

>In regard to the comments about institutional pricing and subscription
>agencies, jobbers have nothing to with journal prices. They make their
>money by creating economies of scale and charging a "service charge" for
>their services (payments, claims, replacement issues, etc.).

I take it you are referring to this quote of mine:
> Recently a company began purchasing journals at individual subscriber
>prices and then reselling these journals to libraries at institutional
>prices. This was quickly stopped by publishers and the company went out of
>business. They could have faced criminal charges, but I don't believe
>publishers pushed for this.

This was a highly irregular get-rich-quick scheme designed by a single company. I'm sorry you didn't hear about it. I take it they tacked on service charges in addition to the differential prices they profited from. The case was reported in the Library Journal Academic News Wire sometime last year, probably prior to November, since I seem to have copies of the majority of those published from November on. You can probably find reference to it elsewhere, if you are actually interested. I'll leave it to you to dig it out.

Regards,
Lloyd

>Michael G. Webster
>Eastern Oregon University
>
>"Lloyd A.Davidson" wrote:
>>At 05:30 PM 4/3/2003 -0500, you wrote:
>>
>> >Date: Sat, 29 Mar 2003 15:06:54 -0600
>> >Subject: [CNI-COPYRIGHT] Re: "Do not sell to schools" and copyright
>> >From: "Belvadi, Melissa" <mbelvadi[_at_]maryville.edu>
>> >
>> ><snip>
>> >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
>>
>> Contracts for individual subscribers and for libraries are, in fact,
>>expressly written to forbid individual subscriptions to be used to supply
>>libraries or other institutions with copies in lieu of a library
>>subscription. As long as a library has a subscription, however, it is OK
>>to replace a worn or torn library copy of a journal with one from an
>>individual's collection. It is also OK to replace missing copies with
>>donations from individuals.
>> Recently a company began purchasing journals at individual subscriber
>>prices and then reselling these journals to libraries at institutional
>>prices. This was quickly stopped by publishers and the company went out of
>>business. They could have faced criminal charges, but I don't believe
>>publishers pushed for this.
>> The rationale for the difference between individual and institutional
>>prices is that an institutional subscription may erode the journal's
>>individual subscriber base. This is an even more threatening possibility
>>when subscriptions of journals published in digital format are distributed
>>campus-wide since this makes the journal more conveniently available than
>>simply having one paper copy in the library.
>> It is true that many publishers price institutional subscriptions
>>unfairly high relative to prices offered to individual subscribers, but
>>with virtually all scientific, technical and medical journals switching to
>>digital formats, this issue is only going to become more important to
>>publishers over the next few years. Unless publishers can come up with
>>some reasonable solutions to this quandary, it is quite possible that the
>>age of the academic individual subscriber might be at an end. Of course,
>>some journals are not marketed to individuals at all (e.g. Brain Research
>>at $18,000+ per annum) but journals like Cell, Science and Nature are
>>facing a serious dilemma about how to protect their subscriber base, upon
>>which their advertising revenue depends.
>>
>>Lloyd
Received on Mon Apr 07 2003 - 04:10:02 GMT