Referencing a paragraph between Fair Use and a License

Question

Let's assume Alice produces a work that lists lore and statistics for beasts, and how to prepare them for adventure meals, and calls it Monster Cookbook, or MC for short. In it, Alice lists a creature on page XX that could be best summarized as a flying orb with a giant mouth with more mouths added on stalks and declares that thing is called a Gourmet.

Now, Alice decides to use the OGL (Open Game License) 1.0a for her Monster Cookbook and declares the the Gourmet is a product identity.

Bob now wants to write an adventure set in a gigantic restaurant. He wants to feature the Gourmet... Normally just writing "Gourmet (Alice: MC, p.XX)" would qualify as fair use (as you reference a fact) but here, we have the OGL providing this:

7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.

May Bob provide a pointer to Alice book or does he breach the License if he does?

Answer 1

The OGL is a licence to use the content. To the extent that use requires distribution/copying, the OGL is licensing that. In several clauses, it specifically contemplates that material used will be distributed. This is the kind of activity that is being licensed.

A licence to do a thing is required only when the action would otherwise be prohibited.

You assert in the question that

Normally just writing "Gourmet (Alice: MC, p.XX)" would qualify as fair use

That means no licence is needed to do that thing, so there is no need to even inquire into what any licence says.

Think about a book whose author has provided a licence for limited kinds of copying (e.g. "you may reproduce up to five pages of material as long as you credit the author and as long as it is not for commercial purposes"). If you want to use the book as a stand for your monitor, you do not need a licence for that. If you want to read the book, you do not need a licence for that. If you want to copy a portion of the book in a way that falls within a fair dealing right or fair use exception, you don't need a licence for that.

Only when the copying would stray into the exclusive rights of the copyright owner and not be permitted by fair dealing / fair use would one need a licence.

Your assertion that the use in question is fair use (although, I doubt it would even be infringement) renders the licence question moot.

Answer 2

No, Bob is not breaching the OGL if he provides a pointer to Alice's book. The OGL only restricts the use of Product Identity as an indication of compatibility or for creating derivative works. Providing a pointer to Alice's book does not fall into either of these categories.