Wednesday, September 24, 2008
Orit Fischman Afori, College of Management Academic Studies Law School, has published "Implied License--An Emerging New Standard in Copyright Law," in volume 25 of the Santa Clara Computer and High Technology Law Journal (2008). Here is the abstract.
This article addresses a proposed new standard in copyright law - the "implied license" doctrine, which has the potential to play a prominent role in copyright conflicts, especially in the context of digital media. The implied license doctrine is not new to intellectual property law however its use is currently limited. It is viewed essentially as a ramification of contract law, and as such the doctrine is usually applied to fill gaps in existing contractual or quasi-contractual relations, as a means of identifying the subjective or even objective intent of the relevant parties. This article proposes a new conceptualization of the implied license doctrine, one that would enable courts to impose norms based on public policy considerations in order to bring reasonableness into the law of copyright, as it affects digital media, especially in the internet. This standard of an implicit license should, in this view, override the intent of the relevant parties, even if explicitly stated, and would thus introduce clear and binding rules of conduct. In this sense, "implied license" is used here metaphorically, since is removed from the realm of contract law and in fact is used in some cases as a means of bypassing actual contractual provisions.
The scope for applying the proposed doctrine can be seen, for example, in the case of copyright issues that challenge the legality of various practices on the internet, such as linking, framing, the operation of search engines and the sale of works through transmission of digital copies. With respect to all these issues, the implied license doctrine can serve as a fine-tuning mechanism, permitting reasonable practices that are essential to the operation of the internet, while taking into consideration other conflicting interests where appropriate.
Download the article from SSRN here.