Tuesday, January 17, 2012

Statement of Common Understanding for Purchasing Electronic Content

Below is a draft document produced for the Douglas County Libraries with the assistance of Mary Minow of librarylaw.com. We propose to start using it - and to encourage other libraries to start using it, too. Your comments are welcome. [Revised July 22, 2012] See also our "Dear Publishing Partner Letter."

[SERU: A Shared Electronic Resource Understanding for Purchase of E-Content Sold by Providers to Public Libraries]

Statement of Common Understanding
for Purchasing Electronic Content
The Purchase Order

The nature and extent of the content is detailed at the outset in a purchase order with such specifics as: title(s), format(s) (including details of multimedia files), price, discount, any agreements to promote and/or link to Provider’s site to bring readers to information on buying copies. Future purchases may be made through the Library’s acquisitions dashboard. The Library may purchase additional copies of any title with a holds ratio of 4 to 1 or greater.

The Provider affirms that it has secured the rights necessary to distribute the e-content to the Library in the manner specified below. The purchase order does not transfer any copyright interest in the e-content. It transfers only the ownership of authorized copies of e-content files.

The Library affirms that it will comply with U.S. Copyright Law. The Library uses Adobe Content Server and/or standard digital rights management best practices to inhibit unauthorized copying of files.

The Library and the Provider interpret U.S. Copyright Law in the following manner: The Library may not make multiple unauthorized copies to sell or lend. The Library may lend one copy to one user at a time. For example, if the Library buys four copies of a work, it may lend four copies simultaneously. It may not make derivative works, such as translations or movies. These are exclusive rights granted to the copyright owner 17 U.S.C. Sect. 106

The Library may lend a copy to a library user under First Sale 17 U.S.C. Sect. 109. The Library may make incidental copies as necessary to perform the lending function. The lending copy is an “evanescent” copy that disappears after a set period such as two weeks. During that time, the copy is not available to any other party. Incidental exercises of other lawful rights constitute non-infringing “fair use.” See Perfect 10, Inc. v. Amazon.com, 508 F. 3d 1146 (9th Cir. 2007). Consideration of four Fair Use factors (see 17 U.S.C. Sect. 107): (1) The purpose for the digital copying is for nonprofit lending through a library, a favored purpose. (2) The nature of the work is published and may range from the highly technical to the highly creative. (3) The amount copied is an entire work, but it is “evanescent” in that it is not viewable after the loan period has ended. (4) The market effect is negligible in that the content owner is compensated for an authorized copy. Although a digital file is not susceptible to wear and tear in the same manner as a physical book, it is susceptible to digital decay.

Archiving and Perpetual Access
The Library may make a replacement copy for a damaged, deteriorating, lost or stolen file or if the existing format in which the e-content is stored becomes obsolete and if the Library, after a reasonable effort, determines that an unused replacement cannot be obtained at a fair price and that any such copy reproduced in digital format is not made available to the public in that format outside the premises of the library. 17 U.S.C. Sect. 108(c).

Accessible Copies
If a published nondramatic literary work is not accessible to library users with disabilities, the library may reproduce and distribute a copy in a specialized format exclusively for use by blind and other persons with disabilities. The copy shall bear a notice that any further reproduction or distribution in a format other than a specialized format, and will include a copyright notice identifying the copyright owner and the date of the original publication. 17 U.S.C. Sect. 121.

Additional Uses
This purchase order may be accompanied by a separate license agreement that allows concurrent or other additional uses that go beyond the uses permitted under U.S. Copyright Law.

Authorized Users
The Library’s current staff and registered patrons are authorized users and may access the e-content remotely with appropriate log-in credentials.

Inappropriate Use
The Library recognizes that the material provided as part of the acquisition is a valuable business asset of the Provider and that misuse of this material, such as unauthorized resale or systematic redistribution, negatively affect the Provider’s business. The Library will make reasonable efforts to prevent the misuse of the content and limit access to authorized users, and will not knowingly allow unauthorized users to gain access.

While the Library cannot control user behavior, an obligation to inform users of appropriate uses of the content is acknowledged, and the Library will cooperate with the Provider to resolve problems of inappropriate use.

When questionable activity such as systematic downloading is detected, the Provider should notify the Library as soon as possible. If the Library detects inappropriate use, the Provider should be notified as soon as possible. Both the Provider and the Library should strive to resolve the incident quickly.

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