RE: Library subs for works licensed under Creative Commons

["Macklin, Lisa Alsing" <lmackli@emory.edu>]

Ann,

You are correct that the Creative Commons license is a license 
granting rights to users, without the need to ask permission from 
the copyright owner, for specific uses which are the exclusive 
rights of the copyright owner under section 106 of US copyright 
law (right of reproduction, distribution, display, create 
derivative works, etc.).  Typically a license agreement is the 
contract which defines the business relationship and terms 
between the publisher/vendor and the library.  The terms of the 
license agreement can be more or less restrictive than the rights 
granted under copyright law.  For example, section 108 (d) is an 
exception to the exclusive rights of the copyright owner and 
grants libraries and archives the right to provide a copy through 
ILL.  A license agreement may restrict or put conditions on ILL, 
and the terms of the license would prevail over section 108 (d) 
in the copyright law.

It is possible to purchase a product containing copyrighted 
content without a license agreement and simply rely on copyright 
law (and in this case the Creative Commons license) to determine 
how the content may be used.  This does not address the business 
relationship between Yale and the publisher, including terms of 
access or specific archival rights.  Since this is your concern, 
I would suggest asking the publisher if they would be willing to 
sell their product under the SERU understanding, which is not a 
license but which does create an understanding between the 
parties as to access, archives, etc.  See the webpage at 
http://www.niso.org/workrooms/seru.  This would give more 
certainty to the business aspects of the agreement, which is the 
concern you have expressed for Yale, without creating a license 
agreement.

Lisa A. Macklin, J.D.
Coordinator, Intellectual Property Rights Office of
Emory University Libraries
Robert W. Woodruff Library
Atlanta, GA 30322-2870