Post by Georgia Harper to Digital Copyright Listserv, University of Maryland University College, re Publisher Restrictions on Linking, 12/5/08

Post by Georgia Harper [Scholarly Communications Advisor for the University of Texas at Austin Libraries and 2006-2008 Intellectual Property Scholar, University of Maryland University College, Center for Intellectual Property] to Digital Copyright Listserv, University of Maryland University College, re "Publisher restriction on linking":

"Lori: You asked, "Does this licensing agreement just side-step copyright law and guidelines? Can publishers really stop educational fair use in this way? I'd be very interested in outside reading on this topic, links to blogs, etc., and your comments.

Answers: Yes. Yes. Comment: You've stumbled upon the famous Harvard Business Review exception to everything. Contracts that are negotiated, which your institutional subscription to EBSCO was (by someone), allow the parties to agree to just about anything they want to, short of ax murdering (i.e., crimes and misdemeanors, civil wrongs, etc.). So there you have it. HBR wants separate permissions licenses (or a heftier share of the EBSCO dinero) for the uses that everyone expects they are paying for when they subscribe to EBSCO, so be it. Sign here (again, which someone at your institution did). Outside reading - Harvard's explanation that fails to address the basic question, "why do you think your stuff is worth so much more than everyone else's:"http://www.google.com/url?sa=t&source=web&ct=res&cd=2&url=http%3A%2F%2Fwww.caul.edu.au%2Fdatasets%2Fhbr2008course-use.pdf&ei=06M5SeCjKIyG8gSvyLzoBg&usg=AFQjCNG07SMjR2zJbtgtn-yvJ4j4cvY18Q&sig2=R9dps-NZjzjaAq0j8INM8A
I suppose the answer is, "well, it is worth more if people will pay more,right?" Right.

To learn more about how and under what circumstances licenses trump copyright rights and privileges, well, that's a huge topic. Google 'relationship contract law copyright' for starters. Several good links on the first page, enough to get you going."