RE: Peggy Hoon on licenses

[Sandy Thatcher <sandy.thatcher@alumni.princeton.edu>]

I see your point, Peggy, but I don't think it solves the problem. 
There still remains ambiguity about what the boundary between 
noncommercial and commercial is, and as long as that ambiguity 
exists, anyone thinking that a subsequent use is noncommercial is 
subject to challenge by the copyright owner whose interpretation 
of the term may differ.

Thus, the editor of an anthology may think that the copyright 
owner of the article included in the anthology is only due a fee 
for its appearance in the print edition that is for sale, while 
the online publication of it is free to the end user and 
hence--in the editor's opinion--noncommercial. The author of the 
article may well want to dispute this point and argue that the 
online use facilitates sale and is therefore commercial at least 
indirectly.

The only way I see of solving this problem is to do what 
publishers do, viz., enumerate just what subsidiary uses are 
included within the scope of the contract. In the case of the CC 
license, this would mean spelling out just what the copyright 
owner means by "noncommercial." But then the CC license loses 
some of its effectiveness as a simple tool for universal use; 
each CC license might list different uses as "noncommercial."

Sandy Thatcher


>What about this - tell me if this makes any sense.  Take a step 
>farther upline and ask the question, why does the license even 
>need a clause prohibiting commercial use?  Won't copyright law 
>handle it?  Like it does for print journals or print books? 
>That is, if I, as an authorized user, access a library licensed 
>online journal, even without a clause addressing "commercial" or 
>"noncommercial" use, aren't I limited by copyright law as to 
>what and how much of what I read I can use anyway?  That is, 
>assuming no clause, if I take the entire article or a "larger 
>than fair use" (if you'll give me that leeway for purposes of 
>this discussion) portion and publish it, for free or for money, 
>it doesn't matter - I've still infringed, haven't I?  I mean, 
>just because I'm reading the work online as opposed to print, 
>copyright law still applies, yes?  I think re-publishing the 
>work (or a significant part) is protected either way - clause or 
>no clause.
>
>What suffers is getting the blanket permission to use the whole
>thing for non-commercial use.  Without a clause addressing
>non-commercial use, the non-commercial user is also constrained
>by copyright law and must resort to some sort of fair use
>argument.  So maybe rather than trying to define what is or is
>not commercial use, the vendor relies on copyright law; AND, if
>so desires, states what uses of amounts beyond fair use amounts
>are permitted.  Seems simpler...i think..
>
>Peggy