RE: Peggy Hoon on licenses

["John Cox" <John.E.Cox@btinternet.com>]

The reason that a clause prohibiting commercial use (e.g. the 
relevant BioOne clause, or the clause to be found in the model 
licences on www.licensingmodels.org) is commonplace is that 
publishers are striving to establish a level playing field in the 
context of very varied provisions in each nation's local 
copyright law.  Remember that scholarly publishing is a global 
activity.

The UK and the US provide good examples.  'Fair use' under US law 
grants a right provided the four conditions set out in the 
statute are met, while 'fair dealing' under UK law is a defence 
to a claim for breach of copyright. UK law also specifies that 
use by a commercial entity or use for any commercial purpose 
(even by a charity) removes that defence. Including a provision 
in a licence irons out those differences, and also provides some 
certainty.  The contract - the licence is a contract - governs 
the parties' conduct.

Relying simply on copyright law, particularly in relation to the 
vagueness of the four tests in US law, risks copyright disputes 
that might end up in litigation - costly and unpredictable.

John Cox

Managing Director
John Cox Associates Ltd
Rookwood, Bradden
Towcester, Northamptonshire
United Kingdom
E-mail: John.E.Cox@btinternet.com
Web: www.johncoxassociates.com


-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Hoon, Peggy
Sent: 20 April 2011 04:31
To: liblicense-l@lists.yale.edu
Subject: RE: Peggy Hoon on licenses

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