[Book Review] Implied licences in copyright law

This is a review of Poorna Mysoor’s Implied licences in copyright law (Oxford University Press, 2021).

As the title suggests, this book consists of a detailed analysis and explanation of instances where it is possible to imply a copyright licence in response to or as a defence to an allegation of copyright infringement. The book which contains 12 chapters presented in three parts; 1) Conceptual Foundation, 2) Rationalising conceptual frameworks within copyright doctrine, and 3) Application of copyright licences to the internet, develops a method of implying copyright licences, based on the consent of the copyright owner; an established custom; and state intervention to achieve policy goals.

Part 1 contains 3 chapters which provide a conceptual framework for the analysis in the monograph. In chapter one, the book explains the nature of a copyright licence using Hohfeldian analytics, concluding that a licence is not in itself a contract but may be part of a contract. Different considerations apply depending on whether one is implying a licence into a contract or whether one is implying a bare licence. Chapter two explains the bases upon which copyright licences can be implied asserting also that the bases for express licences to arise are the same as those for implying copyright licences: copyright owner’s consent; policy-based implied licence where the state (the courts inclusive) intervenes to achieve policy objectives and, custom-based implied licence where one relies on an established usage in a trade or an industry. In chapter three, Mysoor offers frameworks that may be deployed to determine whether a licence must be implied and the scope of such licence. Again, these frameworks mirror aspects of express licences by analysing what constitutes an express licences and applying those constituents to propose criteria for assessing when implying a licence is supported.

Part 2 contains 5 chapters which analyse and justify the existing case law on implied copyright licences in the light of the frameworks offered in Part 1. For the consent-based implied licences, Part 2 splits the discussion into bare licences (Chapter 4) and contractual licences (Chapter 5). Chapter four examines instances where the copyright owner impliedly grants a licence without any form of consideration. Here, the conduct of the copyright owner and their knowledge of surrounding circumstances are important considerations in implying consent on their part. As consent-based bare licences can be unilaterally withdrawn, the chapter explores how and when proprietary estoppel can be deployed in certain cases to declare a bare licence irrevocable. Chapter five explores case law in commissioning contracts; copyright exploitation contracts; and consumer contracts to offer a systematic analysis of consent-based implied contractual licences. Chapters 6, 7 and 8 deal respectively with custom-based implied licences, policy-based implied contractual licences and policy-based implied bare licences. In the case of policy-based implied bare licences, the book explains how such licences have the same effect as statutory limitations and exceptions and therefore, the role of the three-step test (and courts as addresses of the test) in offering a framework for implying such licences.

Part 3 applies the analysis and discussions of the preceding parts 1 and 2 to a live issue: the internet. This part begins in chapter nine by classifying copyright-protected material placed on the internet with and without the consent of the copyright owner. This classification is used to lay foundation for determining which bases of implying a copyright licence apply to address browsing (discussed in chapter ten), hyperlinking (discussed in chapter eleven) and indexing (discussed in chapter twelve). Chapter ten in its discussion of browsing argues that as an activity, browsing includes streaming and engages the right of reproduction. It examines the extent to which the UK’s temporary copying exception addresses copyright infringement liability and argues that an implied licence may “offer a more coherent response”. The CJEU’s approach to the question of whether and when hyperlinking engages the right of communication to the public and therefore, infringing is discussed in chapter eleven. [Katposts on the CJEU's hyperlinking jurisprudence here.] The book finds the CJEU’s approach “inconsistent” and asserts that implied licences also offer a more coherent response here. Chapter twelve which deals with indexing argues that implied licenses may be more relevant to address issues of copyright infringement. 

Concluding, Mysoor reiterates the relevance of implied licenses in balancing the competing interests of copyright owners and users especially in the diverse and changing context of technology and technological developments. While the jurisdictional focus of the book is the UK, the lessons and analysis therein are relevant to anyone (practitioners, policymakers, researchers) interested in applying a methodical way of implying copyright licences in diverse cases to achieve positive outcomes in the public interest. The book is also relevant to anyone who is interested in a systematic method to utilising limitations and exceptions as implied licences to permit access to and innovative uses of copyright-protected materials

Extent: 321

ISBN: 9780198858195

Publisher: Oxford University Press