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Why do so many journal publishers include in their license agreements restriction on divulging the terms of the license, including price of the subscription?

Nondisclosure clauses in licensing agreements are fairly standard legal practice for all types of licenses. For library subscriptions, the matter has been in the press recently, and a number of large academic libraries are refusing to sign such agreements as they come up for renewal. Cornell University is one such institution, and a document detailing the reasons for its stance can be found at library. cornell.edu/aboutus/nondisclosure. Many suspect that the reason publishers require nondisclosure clauses in their licenses is that they make various price deals with different libraries, even libraries of the same type. In addition to price, there could be other terms that differ for various sizes of institutions, geographical locations, subject emphasis, and so forth.

The problem, of course, is that if a publisher has a nondisclosure clause, one simply cannot know whether there are differences from institution to institution or consortium to consortium. Further, libraries want to be treated fairly in comparison to other libraries. Thus, librarians have increasingly refused to sign license renewals that have nondisclosure clauses.

Sometimes a publisher's terms and conditions posted online contain contradictory terms even regarding use of the company's digital materials for interlibrary loan. May a library simply follow the copyright law and the ALA Interlibrary Loan Guidelines and still be legal?

In negotiating such a license, the library is responsible for getting terms clarified if staff believes them to be contradictory. If an authorized representative of a library signs a publisher's license agreement, then according to section 108(f)(4) of the Copyright Act, the library is bound by the terms of the license. According to the library section of the Copyright Act, the license agreement takes precedence over the copyright law and guidelines for libraries.

The question about online licenses is a bit more complicated; assume that a publisher has a click-through license and some of the terms are contradictory. Under section 108(f)(4), a library is still bound by the terms of that license, even though it was not able to negotiate the terms. Contradictory terms typically are enforced by courts in favor of the party that did not draft the contract since the drafter of the license (the publisher) had every opportunity to correct terms.

If a library goes forward and relies on the law and Interlibrary Loan Guidelines in lieu of the license agreement, a court may find that this is not infringement due to the conflicting terms. On the other hand, it may support the publisher's view.

May a university library provide temporary access to the university's online databases to individuals who are not enrolled students?

Only if the library's licenses to those databases permit such access. The question does not indicate who these individuals might be. Are they faculty and staff of the university, or are they totally unaffiliated with the institution? Most licenses provide access to faculty and staff of that university, along with enrolled students. The issue is more complicated if the individuals seeking access are unaffiliated users. Many libraries attempt to include in all of their licenses access for "walk ins." However, if the license says that access is available only to the university's faculty, staff, and enrolled students, then walk-in access is not allowed. Section 108(f)(4) indicates that license agreements trump copyright for libraries.

A small college library serves as the library support for some contract schools that are both online and for-profit. The commercial institutions pay an annual fee for services to the library. What does the library need to know in terms of copyright as well as using the database to provide materials to students from these schools?

In the days before licensing was prevalent, contracting with a library to provide services was pretty straightforward. The library would provide reference services, permit students from other fee-paid schools to come and use the collections, and provide other in-person services. It would borrow materials through interlibrary loan for students at these schools and generally serve as the college library for them. Licensing of access to materials has changed this dynamic somewhat.

Typically, a license provides access to databases and other electronic materials only to students, faculty, and staff of the institution signing the license. Under such a license, providing access to non-enrolled students would violate the terms of the license agreement. It may be possible to negotiate some of the database licenses in order to provide access to students who are enrolled at these other institutions. However, absent such provisions in the license agreement, access to non-enrolled students violates the terms of the contract.

If the library gets full-text articles through Ovid or Dialog on the web, are copyright royalties included in the price? Or, must articles be tracked like interlibrary loan copies and the library pay royalties through the Copyright Clearance Center or directly to the publisher when the suggestion of five is reached?

When a library subscribes to an online service, the license fee is in lieu of royalties. Whether the library may provide copies of articles obtained through Ovid or Dialog to outside users depends on the terms of the license agreement executed by the library. Many licenses restrict use to students, faculty, and staff of the institution. Should providing articles to outside users not be permitted, and if delivery of those articles is important to the library, it should contact the copyright holder to see if the contract can be renegotiated to include the desired activity, or if it can pay royalties for providing copies to outsiders.

 
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