Re: A serials pricing issue

On Mon, 28 Nov 1994, Margaret Henty wrote:
>
> GORDON AND BREACH AND HARWOOD ACADEMIC JOURNALS
>
> The National Library of Australia has received a letter from Blackwell's
> Oxford regarding its 1995 subscription renewals to academic journals
> published by Gordon and Breach and Harwood. The letter explains that
> Gordon and Breach have introduced a network subscription rate "for
> subscribers with extraordinary need to copy or redistribute exceeding the
> rights granted by copyright laws...". This library has been put into a
> category which requires this payment.
>
>
> It also seems that Gordon and Breach are seeking to use contractual
> licensing to impose what they allege to be Swiss standards of "fair use"
> on libraries in other jurisdictions. Aside from the casual overlooking of
> the fact that the real fair use standards to be applied are those of the
> country in which copying takes place, this appears to signal a dangerous
> trend in the use of contracts to subvert the balance set by copyright law
> in the public interest.

This does indeed seem to be the game plan. It is permissible, as a matter of contract for parties to agree to limit their statutory copying rights. If this is the agreement between the parties, what is "fair use" according to the local legislation does not determine the issue. Copying otherwise than in accordance with the contract amounts to a breach of contract, whether or not it is also a breach of copyright. Your posting does not set out full details of what "fair use" amounts to under the proposed agreement, but it seems to be substantially less than that permitted under Australian law.

There is no obligation on the Library to agree to the proposal, but there is probably no obligation on Blackwells to give subsciption rates and deliver the journals to you unless you do. If you can obtain a copy of the Journal through other sources, you would be entitled to do any further copying permitted by law using that copy. The Library may also have some rights under the Trade Practices Act for anti-competetive conduct, but that raises a whole raft of new issues.

The idea of arbitrating in Zurich a dispute about the extent of copying at a library in Australia is peculiar - it would be more convenient for all concerned to have the arbitration heard where evidence about exactly what copying took place can be easily obtained.

Don't sign if you can avoid it.

Scott Ellis
sellis[_at_]yarrow.wt.uwa.edu.au
Freehill, Hollingdale and Page
15 - 17 William Street,
Perth WA 6000
'phone (619) 327 5777
facsimile (619) 327 5207 Received on Wed Nov 30 1994 - 02:07:47 GMT