Pub Date : 1900-01-01DOI: 10.1093/oso/9780198858195.003.0006
Poorna Mysoor
This chapter evaluates consent-based implied contractual licences. Consent-based implied contractual licences differ from consent-based bare licences in that there is consideration that flows from the licensee in exchange for the licensor undertaking not to revoke the licence, in addition to there being an intention to create legal relations. The existence of a contract provides the structure within which to assess the copyright owner’s consent as the basis for implying a licence. The modern significance of implied contractual licences lies in their application to copyright content placed online by or with the consent of the copyright owner, and is subject to terms of use that amount to a contract. This chapter applies the framework proposed in Chapter 3, rather than the rules of implying terms in fact, in order to make the process of implication more transparent. The chapter examines the case law in three broad categories of contractual copyright licences: (i) commissioning contracts; (ii) copyright exploitation contracts; and (iii) consumer contracts.
{"title":"Consent-based Implied Contractual Licences","authors":"Poorna Mysoor","doi":"10.1093/oso/9780198858195.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198858195.003.0006","url":null,"abstract":"This chapter evaluates consent-based implied contractual licences. Consent-based implied contractual licences differ from consent-based bare licences in that there is consideration that flows from the licensee in exchange for the licensor undertaking not to revoke the licence, in addition to there being an intention to create legal relations. The existence of a contract provides the structure within which to assess the copyright owner’s consent as the basis for implying a licence. The modern significance of implied contractual licences lies in their application to copyright content placed online by or with the consent of the copyright owner, and is subject to terms of use that amount to a contract. This chapter applies the framework proposed in Chapter 3, rather than the rules of implying terms in fact, in order to make the process of implication more transparent. The chapter examines the case law in three broad categories of contractual copyright licences: (i) commissioning contracts; (ii) copyright exploitation contracts; and (iii) consumer contracts.","PeriodicalId":385124,"journal":{"name":"Implied Licences in Copyright Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114506357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780198858195.003.0012
Poorna Mysoor
This chapter studies hyperlinking and how implied licence can help better understand it both when the content was placed on the internet by or with the copyright owner’s consent and when it was not. Hyperlinking enables establishing links between different webpages and is critical to enhancing the efficacy of the internet. Although scholars are still divided, courts have held that hyperlinking engages the right of communication to the public. However, the approach adopted by the courts suffers from inconsistencies. This chapter instead argues that it makes sense to regard hyperlinking as amounting to the exercise of the right of communication to the public based on a consistent interpretation, and asks whether such exercise does not infringe the right because of the licence implied on different bases.
{"title":"Hyperlinking","authors":"Poorna Mysoor","doi":"10.1093/oso/9780198858195.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198858195.003.0012","url":null,"abstract":"This chapter studies hyperlinking and how implied licence can help better understand it both when the content was placed on the internet by or with the copyright owner’s consent and when it was not. Hyperlinking enables establishing links between different webpages and is critical to enhancing the efficacy of the internet. Although scholars are still divided, courts have held that hyperlinking engages the right of communication to the public. However, the approach adopted by the courts suffers from inconsistencies. This chapter instead argues that it makes sense to regard hyperlinking as amounting to the exercise of the right of communication to the public based on a consistent interpretation, and asks whether such exercise does not infringe the right because of the licence implied on different bases.","PeriodicalId":385124,"journal":{"name":"Implied Licences in Copyright Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129121775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780198858195.003.0011
Poorna Mysoor
This chapter explores the application of implied licences to browsing as an activity on the internet. In this process, in addition to temporary copies of the content made on screen and in transmission, copies are made in the buffer of the computer in order to facilitate uninterrupted access, even if the content is not downloaded. If each copy made in this process needs permission from the copyright owner, then it would significantly impede the functioning of the internet. If browsing is not authorised, it would make infringers out of millions of users for simply viewing websites. The UK’s response has been to subsume this process into the statutory exception under section 28A of the Copyright, Designs and Patents Act 1988, which was transposed from Article 5(1) of the EU Infosoc Directive. This provision, however, suffers from inadequacies owing to certain inherent inflexibilities particularly apparent in relation to browsing of infringing content. This chaper argues that implied licence can offer a more flexible and dependable avenue to resolve the temporary copying issue, rather than the statutory exeption.
{"title":"Browsing and Streaming","authors":"Poorna Mysoor","doi":"10.1093/oso/9780198858195.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198858195.003.0011","url":null,"abstract":"This chapter explores the application of implied licences to browsing as an activity on the internet. In this process, in addition to temporary copies of the content made on screen and in transmission, copies are made in the buffer of the computer in order to facilitate uninterrupted access, even if the content is not downloaded. If each copy made in this process needs permission from the copyright owner, then it would significantly impede the functioning of the internet. If browsing is not authorised, it would make infringers out of millions of users for simply viewing websites. The UK’s response has been to subsume this process into the statutory exception under section 28A of the Copyright, Designs and Patents Act 1988, which was transposed from Article 5(1) of the EU Infosoc Directive. This provision, however, suffers from inadequacies owing to certain inherent inflexibilities particularly apparent in relation to browsing of infringing content. This chaper argues that implied licence can offer a more flexible and dependable avenue to resolve the temporary copying issue, rather than the statutory exeption.","PeriodicalId":385124,"journal":{"name":"Implied Licences in Copyright Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124582718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780198858195.003.0014
Poorna Mysoor
This concluding chapter explores the advantages of implied licences not only in the offline, but especially in the online world. It sums up the justifications for the conception of ‘implied’ and ‘licence’ adopted in this monograph. It also explains how when faced with the facts and circumstances of a case, how one may ascertain which basis for implying a copyright licence might apply. While acknowledging that express words can override implied licences, it explains why it is not a significant limitation on the usefulness of implied licence, arguing that implied licence can and will continue to play a significant role in copyright law. The growing body of case law on implying a term into a contract is a testament to the fact that there are never going to be complete or comprehensive contracts. There will always be the need to fill in gaps, by way of implying licences based on the conduct of the copyright owner or to give effect to a custom or a policy. The chapter then looks at how implied licences have the potential to play a greater role after the Exit Day.
{"title":"Final Remarks","authors":"Poorna Mysoor","doi":"10.1093/oso/9780198858195.003.0014","DOIUrl":"https://doi.org/10.1093/oso/9780198858195.003.0014","url":null,"abstract":"This concluding chapter explores the advantages of implied licences not only in the offline, but especially in the online world. It sums up the justifications for the conception of ‘implied’ and ‘licence’ adopted in this monograph. It also explains how when faced with the facts and circumstances of a case, how one may ascertain which basis for implying a copyright licence might apply. While acknowledging that express words can override implied licences, it explains why it is not a significant limitation on the usefulness of implied licence, arguing that implied licence can and will continue to play a significant role in copyright law. The growing body of case law on implying a term into a contract is a testament to the fact that there are never going to be complete or comprehensive contracts. There will always be the need to fill in gaps, by way of implying licences based on the conduct of the copyright owner or to give effect to a custom or a policy. The chapter then looks at how implied licences have the potential to play a greater role after the Exit Day.","PeriodicalId":385124,"journal":{"name":"Implied Licences in Copyright Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121127386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780198858195.003.0013
Poorna Mysoor
This chapter deals with indexing. Indexing is typically engaged in by internet service providers of different kinds, such as search engines, content aggregators, and online content sharing platforms, including social media. Indexing is the background process that tries to achieve greater accessibility of the content on the internet. However, this process may engage the right of reproduction and the right of communication to the public, and therefore, must be considered separately. Based on the indexing capabilities and to facilitate deeper analysis, this chapter classifies the providers into search engines, content sharing platforms, news aggregators and other content aggregators. The chapter explains how courts have tried to deal with this issue and argues for a greater role of implied licences to address the issues of copyright infringement. While indexing of content that is placed on the internet by or with the copyright owner’s consent can benefit from consent-based implied licence, indexing of the content that is placed on the internet without the copyright owner’s consent may benefit from a policy-based implied licence, saving them from liability for indexing infringing content under certain circumstances.
{"title":"Indexing","authors":"Poorna Mysoor","doi":"10.1093/oso/9780198858195.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780198858195.003.0013","url":null,"abstract":"This chapter deals with indexing. Indexing is typically engaged in by internet service providers of different kinds, such as search engines, content aggregators, and online content sharing platforms, including social media. Indexing is the background process that tries to achieve greater accessibility of the content on the internet. However, this process may engage the right of reproduction and the right of communication to the public, and therefore, must be considered separately. Based on the indexing capabilities and to facilitate deeper analysis, this chapter classifies the providers into search engines, content sharing platforms, news aggregators and other content aggregators. The chapter explains how courts have tried to deal with this issue and argues for a greater role of implied licences to address the issues of copyright infringement. While indexing of content that is placed on the internet by or with the copyright owner’s consent can benefit from consent-based implied licence, indexing of the content that is placed on the internet without the copyright owner’s consent may benefit from a policy-based implied licence, saving them from liability for indexing infringing content under certain circumstances.","PeriodicalId":385124,"journal":{"name":"Implied Licences in Copyright Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126770114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780198858195.003.0005
Poorna Mysoor
This chapter examines consent-based implied bare licences, considering situations where the copyright owner impliedly grants a licence gratuitously, meaning nothing (whether payment or any other form of consideration) flows to the copyright owner in return for the licence. The modern relevance of a consent-based implied bare licence lies in its application to the copyright work placed on the internet by its owner or with her consent. It examines the case law in the light of the framework proposed in Chapter 3, that separates the conduct of consenting separately from the knowledge required to consent. It also discusses the revocability of bare licences. A consent-based bare licence can be revoked, since the ability to grant such a licence and to revoke it (upon reasonable notice) both originate from the powers of the copyright owner. However, there are situations where these licences cannot be revoked, and the courts have ascribed proprietary estoppel as the reason for irrevocability.
{"title":"Consent-based Implied Bare Licences","authors":"Poorna Mysoor","doi":"10.1093/oso/9780198858195.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780198858195.003.0005","url":null,"abstract":"This chapter examines consent-based implied bare licences, considering situations where the copyright owner impliedly grants a licence gratuitously, meaning nothing (whether payment or any other form of consideration) flows to the copyright owner in return for the licence. The modern relevance of a consent-based implied bare licence lies in its application to the copyright work placed on the internet by its owner or with her consent. It examines the case law in the light of the framework proposed in Chapter 3, that separates the conduct of consenting separately from the knowledge required to consent. It also discusses the revocability of bare licences. A consent-based bare licence can be revoked, since the ability to grant such a licence and to revoke it (upon reasonable notice) both originate from the powers of the copyright owner. However, there are situations where these licences cannot be revoked, and the courts have ascribed proprietary estoppel as the reason for irrevocability.","PeriodicalId":385124,"journal":{"name":"Implied Licences in Copyright Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131170052","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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