17 Scholarly Sharing
Katie Zimmerman
Desired Result
A “scholarly sharing” clause allows end users to share small portions of the licensed materials with colleagues who are not Authorized Users under the contract. Researchers routinely collaborate with colleagues who don’t have the benefit of the same subscriptions at their own institution, and they will frequently share a relevant article with such colleagues. This incidental sharing helps the free flow of collaborative research and, when done non-systematically, does no harm to the publisher. A scholarly sharing clause ensures that this behavior is also not a breach of the subscription contract.
Desired Language
Scholarly Sharing. Authorized Users may transmit to a third party colleague in hard copy or electronically, insubstantial amounts of the Licensed Materials for personal use or scholarly, educational, or scientific research or professional use but in no case for resale.[1]
Tricks and Traps
For academic publishers, this is likely to be an uncontroversial clause. Publishers that are less familiar with academic norms may object, however, to sharing with anyone who is not an Authorized User. For these publishers, it can be helpful to explain the academic norms. If the publisher has agreed to an ILL clause, you can also argue that the scholarly sharing clause simply allows researchers to accomplish the same end result without disrupting the flow of research to wait for an ILL request to be processed.
Publishers who offer different pricing in academic and corporate markets may be concerned that content will “leak” from one market to the other (i.e., that a business will not license their content because they can get it through the university). If that is of particular concern to the publisher the clause can be modified to specify “academic third party colleagues” or to explicitly exclude commercial uses (“in no case for resale or commercial purposes.”[2]) Some licensors that are particularly sensitive about control of the content, may still be willing to allow Authorized Users to “sponsor” an unaffiliated colleague for access to the content for the duration of a project, although this solution is dependent on the access method (generally this is only possible if users have individual accounts with the licensor) and may require undesirable intermediation to facilitate.
This clause is one of the clauses that addresses behavior that end users are likely to engage in without consulting the license terms or the library, frequently without even considering that it might not be allowed. Because of this, if you are unable to include this clause in the agreement, then you should pay particular attention to the warranties, licensee indemnities, and notice and cure sections of the license, which should limit the institution’s liability to “reasonable efforts to inform” end users of the terms.
Importance and Risk
This clause reflects likely user behavior that would otherwise be a breach of the license terms, so it is a good idea to include it, and take what steps you can to inform end users if it’s not in place. The importance and relevance of the clause may vary, however, depending on the nature of the particular product.
