Implied license doctrine in copyright law: A typological framework

Abstract

To strike the post-grant balance of interests between copyright owners and users, this paper defines three normative types of implied licenses. The typological framework recognizes a hierarchical degree of deference to copyright owners' intent, such that its function varies from the high degree of deference in the opt-in system to the intermediate degree of the opt-out system, down to the lowest degree of the nonoption system. The three systems in this framework, working on a sliding scale, reflect and further the flexibility of the doctrine. Moreover, given the complexity of weighing the conflicting interests of copyright owners and users, a prescription for elements to be considered, taken from existing cases and the function of the doctrine, is required to slide the application of the doctrine from one type to another. In this way, a greater degree of certainty of the doctrine is improved and the predictability of judicial decisions is increased.