Examining "commercial" vs "non-commercial"
What are suppliers actually concerned about?
The issue of using and transferring bibliographic records for “commercial purposes” (ie for those activities that result in financial benefit) is a real concern for many suppliers, particularly where they:
- have liability to their own suppliers (who may not permit this);
- are concerned that this may undermine their business model ;
- have responsibilities to their members.
Suppliers align their licences to their particular situation, and they therefore tackle this issue in various ways. Mostly, licences are unclear and do not make the distinctions necessary for libraries to be able to understand what is acceptable, what is not, and where they can negotiate. In some cases, licences impose restrictive terms “by default” – the supplier may not have a distinct reason for imposing these terms, and may be open to negotiation.
What is clear is that if institutions rely on the fact that they do not do commercial activities, and do not define this appropriately, they are likely to be left in a vulnerable legal position. This is because “commercial” is frequently defined to include activities that result in direct or indirect financial benefit – students pay fees to an institution that could be classed as indirect financial gain. This is a theoretical risk – none of the suppliers involved in this work have any concerns about a library using their records for their traditional activities (teaching, learning, research, etc) – this is obviously the main reason for the existence of the library, and the bibliographic records that they hold. Where universities are undertaking direct revenue-generating activities the situation is less clear – with the current drivers towards stronger engagement with business and the community, these situations are likely to become more frequent.
What does commercial actually mean, and what should you be able to do?
A key distinction can be made between commercial use and commercial supply:
- Commercial use: where you use records of your holdings to support services offered by your institution for your financial gain, eg Use Case 4 (you are making money from the service, rather than the records).
- Commercial supply: where you are paid for the supply of your records.
What you should be able to do
For the most part, suppliers are not concerned about commercial use – after all, libraries actually purchase these records of their holdings so that they can [use] them within their institution, and it should not concern suppliers if the records facilitate commercial services. Not all suppliers have considered this case in detail, and contractual terms may reflect this uncertainty. If you wish to undertake activities such as Use Case 4 you should have good grounds for being able to do so.
Also, you should be able to do non-commercial supply (eg Use Case 7, Use Case 8 and Use Case 9). Again this may not be clear within your contracts, particularly outside the standard situations of uploading records to organisations such as RLUK or SUNCAT.
What you are unlikely to be able to do
What suppliers do not want is for institutions to supply commercially the records they receive (in bulk or singly). It is, however, unlikely that an institution would actually wish to do this, as there is no requirement to drive it, nor business model to support it.
What it still unclear
There are a number of other activities which suppliers may object to that you should be aware of, but you should have grounds to negotiate with them on. For example:
- Specific instantiations of Use Case 4 where the service is outsourced to a commercial company (eg a PoD service outsourced to Amazon). This would require supply of the records to the commercial company, but as they are contracted by you to provide a service it should be allowable.
- Supply of records to a commercial company (eg Use Case 10), where although you will not be benefitting financially from the supply, the commercial company may itself be (but this may not be clear). You may find that some of your contracts prohibit the supply of records to commercial entities. However, some suppliers themselves have relationships with commercial entities (eg OCLC with Google) so you may be able to negotiate this.