RE: Peggy Hoon on licenses

["Hoon, Peggy" <phoon@uncc.edu>]

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


-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
Sent: Mon 4/18/2011 3:55 PM
To: liblicense-l@lists.yale.edu
Subject: RE: Peggy Hoon on licenses

I don't have any answer to offer, Peggy. I think the 
disagreements you report here are probably pretty common.

Here is another example. What if an author includes a CC-licensed 
article in a book that is posted online for free in order to 
induce sales of a print edition? Is the online use 
"noncommercial" because no fee is charged for accessing the 
online version but "commercial" in the print edition that is for 
sale?

Does every use in a Gold OA publication become, ipso facto, 
"noncommercial" because the work is free to the end user? 
Wouldn't authors expect some kind of monetary benefit from use of 
their material in a Gold OA publication that is making money for 
its publisher? Down the line we may find the use of this CC 
license has given away the store!  Gold OA publishers will be 
delighted to get this windfall.

Sandy Thatcher