Implied license doctrine in copyright law : a typological approach

Abstract

The implied license doctrine has become ‘a fundamental legal principle’ in copyright law of both common law and civil law countries. An implied license, which traditionally referred to an implied consent to use copyrighted works (as opposed to an express granting of consent), has been expanded to become a rights-restricting mechanism that is intended to flexibly balance the interests of copyright owners, users, and the general public. Despite its increasingly important role in the copyright regime, courts and scholars have failed to properly grasp the elusive nature of the implied license doctrine, let alone systematically delineate its conceptual contours or develop a methodological framework. As a result, ambiguity regarding the application of the doctrine has arisen. The uncertainty surrounding the implied license doctrine has the potential to erode its functional underpinnings along with much of the social benefit derived from copyright law. To achieve certainty while maintaining flexibility in applying the implied license doctrine, this thesis develops a theory of implied license types to reconcile the traditional and expanded versions of the doctrine. Specifically, by developing a taxonomy based on variations in the degree of deference to the copyright owner’s intent in granting a license, I propose three distinct but correlated types of the implied license doctrine. First, the opt-in system, which aligns with the traditional notion of copyright, fully respects the intent of the copyright owner to grant a license. Second, the opt-out system adjusts the traditional notion of copyright such that the copyright owners bear the opt-out obligations. Third, the non-option system of the doctrine coercively restricts the reach of copyright by overriding the intent of the copyright owner. Next, in keeping with the distinct logic for each doctrine type, this thesis explains the distinct methods by which a license is implied for each of the three types in the taxonomy. To imply the first type, an opt-in license, I draw on the principles of contract law to identify the grant of a license as a gap through the process of interpretation and then to fill that gap through the process of implication (the sequential approach). For the second type, the opt-out implied license, I call for open acknowledgment of its existence, reveal its unique mechanism, and propose the criteria of efficiency and balance to assess the applicability of this type of license. The key to implying the third type, the non-option license, is determining whether the role of the public policy underlying the implied license is public interest or public safety. In implying a non-option license, a balance can be sought between public interest and copyright owners’ exclusive rights, whereas public safety must be prioritized over copyright protection. The typological framework that I propose in this thesis is sufficiently robust to provide courts with guidance in construing the process of implication and hence to fully implement the function of the implied license doctrine. To prove this, I first present a comprehensive empirical study, which suggests that rather than being irrelevant to copyright infringement claims, the implied license doctrine is increasingly being invoked in Chinese legal practice. However, as the empirical study reveals, the outcomes are neither transparent nor predictable. Second, I use the typological framework to rationalize the judicial reasoning behind typical cases in Chinese legal practice. This process of rationalization itself provides evidence of the robustness of the typological framework. This thesis contributes to the literature in three ways. First, based on the functional goals of the implied license doctrine, it constructs a typology consisting of three normative rather than empirical types of implied licenses. Second, it investigates the method by which a license is implied for each separate type of the implied license doctrine. Third, in contrast to the research that has focused on one or a few leading cases, this thesis presents a comprehensive empirical study that analyzes all reported implied license cases to reveal the status of the doctrine in Chinese legal practice, thus providing a solid context for the process of rationalization.