INDIAN CONTRACT ACT-1872 &

DIGITAL LICENSING

Lagdhir Rabari

Librarian, Gujarat National Law University,

Gandhinagar

OBJECTIVES OF THE ACT

• Objectives of the contract act is to ensure that

the rights and obligations arising out of a

contract are honoured and that legal remedies

are made available to an aggrieved party to

honour his part of agreement. The Indian

contract act makes it obligatory that this is done

and compels the defaulters to honour their

commitments.

PRESENT CONTRACT ACT

The statute of 1781 empowered the Supreme Court, i.e. Court at Calcutta to determine all matters of contract. In spite of this changes made by the courts the difficulties could not be solved. It was felt that comprehensive law of contract must be enacted in respect of contracts. According the Indian Contract bill passed on 25th April, 1982 and came on the Statute force on 1st September 1982 called “Indian Contract Act, 1872. Till now total 15 amendments took place in contract related acts and the last amendment happened in 2012 (w.e.f 19-01-2013).

Basic Principles of Contract (Section 1 to 75), Indemnity and Guarantee (Sections 124 to 147), Bailment (Sections 148 to 182), Agency (Sections 182 to 238)

STEPS INVOLVED IN THE CONTRACT

- Proposal and its communication

- Acceptance of proposal and its communication

- Agreement by mutual promises

- Contract

- Performance of contract

PROPOSAL

“ When one person signifies to another his

willingness to do or abstain from doing anything

with a view to obtaining the assent of that other to

such act or abstinence, he is said to make a

proposal”.

PROMISE

- When the person to whom the proposal is

made signifies his assent thereto, the proposal is

said to be accepted. A proposal when accepted,

becomes a promise.

- The person making the proposal is called the

“Promisor” and the person accepting the

proposal is called the “Promisee”.

CONSIDERATION

According to Section

2(d), Consideration is defined as: "When at the

desire of the promisor, the promisee or any other

person has done or abstained from doing, or does

or abstains from doing, or promises to do or

abstain from doing something, such act or

abstinence or promise is called consideration for

the promise“.

AGREEMENT

Every promise and every set of promises, forming

the consideration for each other is an agreement

An agreement not enforceable by law is said to

void.

DICHARGE OF CONTRACT

- New Agreement

- Substitution of old contract by new contract

- Alteration (Change in terms of contract)

- Rescission (by mutual consent/non

performance/voidable).

TERMINATION OF OFFER

- By notice of revocation

- By lapse of time

- By failure of the acceptance to fulfil a condition

precedent to acceptance

- By failure to accept according to the mode

perforated

- By rejection

DIGITAL LICENSING

• Licenses represent an agreement between the library that seeks to make an electronic resource available for its readers or constituents, and a publisher or vendor who has the rights to such resources and seeks to make them available in the library. License terms and conditions must be fully available to customers in advance of their contracting for said resources. Every license is subject to discussion of terms and to negotiation between the parties.

LICENSES AND VALUES

• The license agreement should be clear and comprehensive, recognizing the needs of the concerned parties. In particular, important terms should be defined so as to be clearly understood.

• The license should balance the rights and responsibilities of both parties.

• The license should provide for remedy periods and other modes of resolution before either cancellation or litigation is contemplated.

• The contracting parties should have the right to back out of the arrangement under appropriate and defined circumstances.

LICENSES: ACCESS AND USE

• The license should provide access for all of the users affiliated with a licensee, whether institution or consortium, regardless of whether they are on the licensee's premises or away from them.

• The license should provide access to individual, unaffiliated users when on the licensee's premises.

• The license should provide access for geographically remote sites if they are part of the licensee's organization.

• Remote access should be provided by way of a web-based, user friendly interface.

• Data that is downloaded locally should be available in multiple standard formats (e.g. PDF, HTML, and SGML), portable to all major computing platforms and networked environments.

LICENSES: ACCESS AND USE

• At a minimum the license should permit users to read, download, and print materials for their own personal purposes, without restrictions.

• Resources provided via remote access to providers' sites should be available on a 24-hour basis, with appropriate "help" or service support, except for short scheduled downtimes announced with adequate notice to the customer library(ies). Penalties may accrue if service commitments are not met.

• A high degree of content stability, both in single and in aggregated resources, should be guaranteed and the institutional customer should be notified of changes. Penalties may accrue if content commitments are not met

LICENSES AND END USERS

• Libraries should work with users to educate them about proper use of electronic resources and take reasonable measures to prevent unlawful use, as well as with providers to halt infringing activities if such become known. Nonetheless, the library should not incur legal liability for actions of individual users.

• It is not appropriate to ask the individual user to agree to a contract, such as a "click" contract, where the institution/library has already made -- or may engage in making -- an agreement on behalf of its patrons.

• Users' privacy should be protected and respected in the license and in any intervention made by information providers or intermediaries.

• The networked information provider should offer usage (as opposed to user) data so that the library licensee may assess the effectiveness of the use of the resource.

LICENSES AND END USERS

• A license should include provision for affordable, perpetual access to the licensed information by some appropriate and workable means.

• A license should address provisions for long-term access and archiving of the electronic information resource(s) under consideration and should identify responsibilities for these.

• Distance Independent Learning poses a challenge to providers and libraries. Licensors should recognize the affiliation of users with a given library or institution, regardless of users' physical location and should permit them routine access to licensed electronic information resources.

LICENSES, CONTENT AND PRICING

• Prices should justify the Accuracy and completeness of the content.

• Prices should be fully disclosed with no hidden charges.

• License should provide clear guidance on cycles of review and de-selection policies for contents, where additional criteria related specifically to format, such as obsolescence, platform reliability may apply.

• Requirements for non-disclosure of license terms are generally inappropriate.

INTER LIBRARY LOAN

• Provisions for interlibrary loan or equivalent services should be included.

• In general, libraries should be able to deliver reasonable length extracts from licensed information to libraries that have not signed a contract for that information for use by a specific patron.

• Fair Dealing (or “Fair Use”) Provision should be maintained.

COLLABORATIVE LICENSE MODELS

• Library seeks to partner with publisher and vendors, especially vendors for eContent, to provide products and services under attractive prices and terms that members may otherwise not be able to achieve on their own. This includes many specially negotiated offers with high standards for favorable pricing and terms.

• We may define the model license approach to reflect these terms and simplify the administrative process for licensing eContent. This collaborative approach is designed to maximize participation at substantial discounts otherwise not achievable through individual library action.

COLLABORATIVE LICENSE MODELS: KEY EXPECTATIONS

• Create collective benefit for institutions that act together that are otherwise unachievable separately.

• Utilize a central license for all participants when possible, with high standards for legal, business and usage terms.

• Provide the best electronic ILL rights where appropriate.

• Obtain Coursepack / eReserve / Course management system rights

• Ensure COUNTER and SUSHI compliant stats are provided.

• Ensure that appropriate downloading rights are provided to maximize the utility of the E-Content.

• Structure the licenses and prices to apply to as wide an audience of library types and sizes.

• Ensure provision of free MARC records where appropriate.