Key points of the Framework Agreement between subito e.v. and publisher

Transcription

1 Key points of the Framework Agreement between subito e.v. and publisher The Framework Agreement is a licence agreement concluded between the respective publisher and the non-profit-making association subito e.v. (hereinafter referred to as "subito"). subito is an important document supply service whose members are large scientific libraries (supplier libraries) in Germany, Austria and Switzerland. Although the Parties have not resolved their disagreements in respect of the lawfulness of an international document delivery service, they have overcome such differences by a viable licence agreement. I. Term The Agreement provides for a basic term of three years. Such term shall be automatically extended by one year in each case if the Agreement is not terminated beforehand in compliance with the notice period. The first two years of the basic term shall be a "test phase" after the expiry of which both the publisher and subito shall for the first time be entitled to terminate the Agreement. The prerequisite for a termination of the Agreement by the publisher shall be that the scope of deliveries within the SLS (see below) has increased by an unacceptable extent or is detrimental to the business model of the publisher (cf. 8). II. Main obligations The publisher shall grant subito a non-exclusive, non-transferable licence to copy articles from scientific publications (journals) of the publisher and to send such articles to its customers by post, fax or (DRM protected). However, the Agreement provides for the possibility of the publisher excluding individual publications. Since the supplier libraries produce and dispatch the copies as instructed by subito, the publisher shall grant such rights also to the supplier libraries. In return, subito undertakes to contractually bind the supplier libraries working for subito as part of the document supply service according to the minimum terms set forth in Annex 1 to the Agreement. Such minimum terms largely correspond to the terms also subito undertook to observe. As consideration for the licence the publisher shall obtain a licence fee per each copy dispatched. subito shall be responsible for the settlement of the licence fee. The amount of such licence fee shall be based on the type of the respective delivery as well as on which client group the customer belongs to. Seite 1

2 III. Scope of application Basic provisions The basis for production of the copies shall in all cases be exclusively printed articles of a publication held by one of subito's supplier libraries. For each request a new copy shall be made of the printed original. Independent of the delivery type, the requested pages shall be scanned and provided in the form of a temporary copy. Such temporary copy may be used only once by the supplier library and after that such copy must be permanently destroyed in accordance with the provisions of the Agreement. Temporary copies many not be made in reserve and may also not be stored in electronic databases. In the event of dispatch by , subito and the supplier libraries shall use a digital rights management system (DRM system) which restricts the use of electronic copies pursuant to Annex 2 to the Agreement and which prevents misuse to the extent possible. The Agreement shall as a rule include dispatch of copies by the supplier libraries to all countries in the world, but not to Germany, Austria, Liechtenstein and Switzerland. Types of services In particular, the Agreement stipulates the terms for two different subito services: 1. Subito Direct Customer Service International (SDS) Within the scope of SDS, subito shall send copies to what is referred to as End Clients (Client Group 1 or 2), i.e. customers who order and receive copies directly through subito. 2. Subito Library Service International (SLS) Within the scope of SLS subito shall send copies to Client Libraries (Client Group 3) complying with an order request from a library user. In such a case the library user must belong to Client Group 1. The order shall be processed by the Client Libary. Delivery, too, shall be effected to the Client Library and not to library users. Provisions for SDS: Scope of application Within SDS, subito shall supply customers belonging to Client Group 1 and Client Group 2. Client Group 1 comprises e.g. students and staff of public universities, Client Group 2 comprises commercial users (see precise definition of customer group in the Agreement). Fees The publisher shall determine the fees for SDS for the respective publication in euros at its own discretion and shall inform subito of such fees in accordance with the provisions of Annex 5 to the Agreement. The publisher may vary the fees as follows: firstly, depending on whether the final customer belongs to Client Group 1 or 2. The publisher is, however, free to grant Client Group 1, e.g. preferred rate. secondly, depending on the type of delivery (post, fax or ). The publisher may determine a maximum of six charge rates per journal. Seite 2

3 Territory SDS shall comprise worldwide deliveries with the exception of Germany, Austria, Liechtenstein and Switzerland. Customer licence agreement subito shall conclude with SDS customers a customer licence agreement. Such licence agreement must meet the minimum requirements stipulated in Annex 10 to the Agreement. This is to secure the rights of the publishers towards the customers. Provisions for SLS Scope of application Within SLS, subito shall supply only customers of Client Group 3; such customers are as a rule publicly financed libraries and are registered as such with subito (cf. exact definition of Client Library in the Agreement). Restrictions The Client Libraries may order copies only for users and make such copies available only to such users registered as users of the Client Library; and meeting the criteria Client Group 1; and residing in the SLS territory specified below during the entire order and delivery process. Where delivery to the Client Library is electronic, the printout of the copy must be collected from the premises of the library by the respective user. Fees The fees were determined by mutual consent for the first two years as follows: in the first year after implementation of SLS the licence fee shall be 3.50 per copy dispatched; in the second year after implementation of SLS the licence fee shall be 4.00 per copy dispatched; for the third year the licence fee shall be re-negotiated between the Parties, taking into account certain criteria. Territory SLS shall substantially comprise deliveries to geographic Europe including Russia with the exception of Germany, Austria, Liechtenstein and Switzerland (cf. Annex 9 to the Agreement for a specific definition). Customer licence agreement subito shall conclude with SLS customers a customer licence agreement. Such licence agreement must meet the minimum requirements stipulated in Annex 10 of the Agreement. This is to secure the rights of the publishers towards the customers. Seite 3

4 IV. Implementation Basic provisions Publishers considering the conclusion of an agreement can obtain the contractual documents either from Börsenverein des Deutschen Buchhandels, the International Association of Scientific, Technical & Medical Publishers (STM) or subito. The contact addresses are as follows: Börsenverein des Deutschen Buchhandels Großer Hirschgraben Buchhändlerhaus Frankfurt am Main, Germany Tel.: +49 (0) Fax: +49 (0) info@boev.de STM Prins Willem-Alexanderhof BE Den Hag The Netherlands Tel.: +31 (0) Fax: +31 (0) info@stm-assoc.org subito e.v. Dr. Braun-Gorgon Cicerostrasse Berlin, Germany Tel.: +49 (0) Fax: +49 (0) braun@subito-doc.de The Agreement comprises an English and a German version. Both versions shall be deemed authentic and authoritative. Therefore, both versions must be signed at all times. In the event of an evident or perceived discrepancy between the English and German versions, the version which, in the light of a purposive interpretation of the Framework Agreement as a whole, best reflects the true understanding between the Parties, shall prevail. The signed contractual documents shall be sent in duplicate to subito's above address; subito shall promptly return the countersigned copies. subito is not obliged to accept the contractual offer. Neither are the publishers obliged to conclude the Agreement in the standard version. Sending of metadata and price lists For the implementation of the Agreement the publisher must, in accordance with Annex 7 to the Agreement, make available the metadata of its publications to subito and determine the fees for SDS according to Annex 5 to the Agreement, and inform subito of such fees. The metadata shall serve the purpose of counter-checking the publications of the publisher against subito s documentation of journals as well their allocation. The requirements of Annexes 5 and 7 to the Agreement must be observed. Deviating formats/contents cannot be processed by subito and must be returned. It is expressly pointed out that the data records may contain only the data for printed publications, electronic journals shall as a rule not be subject matter of the Agreement. Format and content of the metadata The publisher may make the following publications subject matter of the Agreement: Printed journals, newspapers, and journal-like series that are currently published by the publisher, its affiliates, or its subsidiaries; or were published in the past (hereinafter "Back Issues") by the Publisher, its affiliates, or its subsidiaries, whether or not under the same or a different title, insofar as they were published by them and insofar as the rights granted under this Agreement to those Back Issues are currently controlled by the publisher, its affiliates, or its subsidiaries; or are or were co-published by the publisher, its affiliates or its subsidiaries and insofar as the rights to any such co-published Publications are controlled by them. The publisher may expressly exclude individual publications in Annex 6 to the Agreement from the Agreement. However, the exclusion may apply only to publications for which the publisher does not grant rights to any other document delivery service that are commercially equivalent to the rights granted to subito. Seite 4

5 All metadata relating to the publications shall be provided to subito in electronic form in accordance with Annex 7 to the Agreement as soon as possible after conclusion of the Agreement. Such requirements shall apply also for new publications placed on the market after conclusion of the Agreement. subito e.v. shall take the corresponding metadata into account within a reasonable period. Other changes to the metadata shall take effect only at the beginning of each calendar year. For this purpose, the publisher shall provide a new, complete list of metadata no later than 30 days prior to commencement of the respective calendar year. Account details In addition, the publisher shall provide subito with the name of a contact person and account details, using Annex 3 as a basis. In respect of the accounts it must be noted that the crediting of licence fees to publishers with their registered office outside the European Union must be effected by means of transfer by credit card. Therefore, Annex 3 must be filled in accordingly. Timescale The exchange of data shall take place promptly after signing of the Agreement and shall be completed at the latest five weeks after signing of the Agreement. After both Parties have signed the Agreement, subito is obliged to implement SLS within three months. However, the prerequisite for this shall be that subito receives both the metadata (Annex 7) and the price list (Annex 5) at the latest five weeks after signing of the Agreement. If the data transfer is delayed on the part of the publisher, the implementation date shall be delayed in the same way. In respect of SDS there shall be no binding time frame. subito shall, however, endeavour prompt implementation also in respect of SDS. After the introduction of SLS/SDS subito shall, during the test phase, prepare a monthly statistical analysis of the overall delivery of the previous month pursuant to Annex 4 A to the Agreement. Such statistical analysis shall include the delivery of copies of articles of publications of all publishers, but shall reflect only the total number of deliveries, itemised by Client Groups and countries to which such deliveries were made. Such statistical analysis shall be made available to the publisher via the Internet. The licence fee shall be due within 30 days of expiry of each calendar quarter and shall be transferred by subito to the account specified in Annex 3 or the credit card institution specified. To supplement the transfer, the publisher shall receive from subito within 30 days of expiry of each calendar quarter an individual credit note (report) pursuant to Annex 4 B which itemises all deliveries of copies of publications of the respective publisher and states the licence fee owed. Such individual credit note shall be sent electronically. Any peculiarities in respect of value-added tax and withholding tax are stipulated in the Agreement. V. Accession agreement Each subito member offering or wishing to offer an own document transmission service or to participate in what is referred to as inter-library lending and use is obliged to conclude with the publisher an accession agreement pursuant to Annex 11 to the Agreement. In such accession agreement the supplier libraries undertake to offer an own supply service comparable to that of subito only if they operate such service on terms complying with the provisions under the subito agreement or come to a different agreement with the publisher. Seite 5

6 In this accession agreement the supplier libraries undertake to perform inter-library lending and use only by post and conventional fax transmission. VI. Checklist: 1. The Agreement shall commence upon the last signature to 5 weeks after commencement of the Agreement: electronic data transfer to subito (account details; metadata; price lists) 3. 3 months after commencement of the Agreement: implementation of SLS and commencement of the test phase (provided that data transmission was timely and with a content as stipulated), prompt SDS implementation where possible 4. Monthly reports by subito pursuant to Annex 4A. 5. Quarterly issuance of credit notes (reports) pursuant to Annex 4B. 6. Quarterly transfer of licence fees by subito. 7. Any changes of the metadata and price lists shall be taken into account in each case at the beginning of the calendar year. For this purpose subito shall be provided with updated metadata at the latest 30 days prior to the end of the calendar year. 8. At the end of the test phase, negotiations in respect of the licence fees for the third year shall be conducted. 9. After expiry of the test phase the Parties may terminate the Agreement on three months' notice. The prerequisite for a termination of the Agreement by the publisher is that the scope of supply within the SLS has increased by an unacceptable extent or is detrimental to the business model of the publisher. 10. At the end of the 3-year basic term the Agreement shall automatically be extended by 1-year periods each year unless subito or the publisher terminates the Agreement on three months written notice as of the end of the basic term. As at: 18 August 2006 Seite 6