Table Of ContentImplied Licences in Copyright Law
Implied Licences
in Copyright Law
POORNA MYSOOR
Leverhulme Trust Early Career Fellow
Faculty of Law, University of Oxford
1
3
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For my father
Foreword
Many systems of laws, including state constitutions, operate with an underpinning
of unspoken conventions or assumptions. The rationale for this is usually a com-
bination of considerations of economy and efficiency—t oo many rules can impede
the conduct of everyday life— and there is also the understandable desire to have
a flexibility that will enable new cases to be resolved promptly without the need
to engage in fresh law-m aking. Copyright laws provide a paradigmatic instance
of this phenomenon: there are specific rules prescribing the exclusive rights to be
granted to copyright owners, the limits on these rights in both substantive and
temporal terms, and their enforcement. But there are many usages of protected
works and subject matter not covered by the rules: while strictly infringing, users
would mostly be surprised that this is so and, indeed, mostly assume that this is not
the case. This is not a matter where guidance for national laws is to be found at the
international level in the treaties to which the vast majority of countries are now
bound, such as the Berne Convention, the WIPO Internet Treaties, or the TRIPs
Agreement.
It is within the gaps between rights and uses that the device of the implied licence
comes into play. In common law systems, at least, this flows from judicial decisions
rendered on a case- by- case basis, although it is also true that in some instances it
is assumed that an implied licence applies even in the absence of any court finding.
For common lawyers, this may represent the genius of their legal tradition where
judicial decisions in areas not directly covered by statute proceed incrementally by
way of analogical reasoning and, over time, develop a body of case law that pro-
vides either binding or persuasive precedents for future courts to apply. Such de-
velopments, however, take time, particularly as the circumstances and uses to be
addressed are themselves in flux and in the process of rapid evolution. This is no
surprise to those involved in copyright law and practice: technological change and
development are part of everyday life. It should also be no surprise that the case law
concerned with implied copyright licences presents, at first sight, as a somewhat
amorphous and disorganised body of jurisprudence that lacks the coherence that
one finds in other, longer established common law areas such as the tort of negli-
gence or the law of contract.
Providing a systematic study of this aspect of copyright law is the subject of
this monograph by Dr Poorna Mysoor, and one that has been long overdue. She
provides here an analytical framework for the examination of implied copyright
licences in common law systems, with the object of formulating a workable meth-
odology for courts to apply in future cases. For understandable reasons, her work is
viii Foreword
confined to common law jurisdictions, apart from the USA (the latter presents its
own peculiarities), while the position under civil law systems is clearly a promising
subject for future investigations of a comparative kind. But even within common
law systems such as the UK, Australia, and Canada, the body of material to be
examined is large, and the distillation of clear principles is not always easy— judges
have to decide the cases before them, and frequently do not have the time or the
need to spell out the analytical framework within which they are making those de-
cisions. In this regard, Dr Mysoor’s monograph will be invaluable in providing that
framework and in making sense of the cases.
Beginning with the adoption of Wesley Hohfeld’s classification of rights and
duties, privileges and no- rights, Dr Mysoor divides implied copyright licences into
bare and contractual licences, which becomes of particular relevance in the context
of revocability. She then investigates the various bases for implication: the consent
of the copyright owner to the use in question, the role of custom and, most con-
troversially, the role of policy. She then carefully examines how these matters have
been dealt with in the case law. In relation to the first, it becomes clear that the issue
of consent is better understood as an inquiry into the knowledge of the copyright
owner of what was contemplated at the time the copyright work was made avail-
able (the ‘positive act’, in Hohfeldian terms) and the effect of the copyright owner’s
subsequent conduct in relation to this (the ‘neutral act’, in Hohfeldian terms). In
this regard, she argues that analogies drawn from implication of contractual terms
(business efficacy and necessity) are not necessarily appropriate in the copyright li-
cence context. In the second case of implication arising through custom, she exam-
ines the scope for this in various areas of copyright uses, noting that implication
here becomes non-c onsensual in relation to the individual copyright owner or, ra-
ther, consent is imputed on the basis of a collective consent that has developed
through the consistent and uniform practice of the relevant copyright community.
This has particular resonance in the age of the internet, where it is often said that
there are now well established customs of usage, although the challenges of proving
custom will be far from straightforward.
In the third instance, that of policy- based implied licences, Dr Mysoor con-
fronts a complex and often unwieldly beast, yet it is one that judges in several of
the jurisdictions studied have embraced in differing ways. A clear methodology for
implying licences in these cases, in the absence of some specific statutory limitation
or exception, is required, and here Dr Mysoor deploys the three- step test (relevant
to all of the common law systems studied by her, as a result of their international
obligations) as a useful guide, as well as pointing to the application of fundamental
rights under the European Convention on Human Rights in the particular case of
the UK. Her analysis is crisp and well informed, and there is much food for thought
here, as there is a fine line between judges providing workable solutions to practical
problems or becoming judicial legislators. In her concluding chapters, Dr Mysoor
Foreword ix
then applies her analytical framework to three particular issues in the online envir-
onment: browsing, linking, and indexing.
There is much in this monograph to engage, challenge, and instruct the reader.
Implied copyright licences provide the lubricant that oils the everyday usage of
copyright materials, yet the theoretical bases for implication have never been sys-
tematically analysed. Dr Mysoor has done just that, and provides an important
contribution to our understanding of the way in which courts in a common law
jurisdiction can facilitate the smoother working of the copyright system. She is to
be congratulated on her achievement.
Sam Ricketson
Emeritus Professor of Law
Melbourne Law School
2 October 2020
Preface
The monograph is derived from my DPhil thesis submitted in April 2017. Since
the time of submitting my thesis, the topic has grown on me and I have grown with
it. My engagement with this topic has been enriched by every audience to whom
I had the privilege to present. Although my core arguments and conclusions have
remained the same, my approach to these arguments and the manner of presenting
them to a wider audience has undergone significant changes.
When this topic was suggested to me in 2012 for a doctoral thesis, I had im-
agined that I would be writing a law and technology thesis. Implied licence seemed
to be an interesting topic because of its application to the internet. However,
starting a doctorate in Oxford on this topic made all the difference to the way
I understood this topic. I soon realised that the internet is only an illustration of
the application of implied licences. For implied licences to provide any meaningful
support to judicial reasoning, one must understand what a ‘licence’ is, what one
means by ‘implying’ a licence and finally, how one may go about implying a copy-
right licence. This brought me close to not only the private law subjects of contract
law and land law, but also to private law methodology and values—t he fine balance
between guidance and flexibility, the strenghts and pitfalls of certainty, the idea of
fairness, to name a few. The exposure to private law was a defining moment in my
journey towards building my research profile and honing my niche at the intersec-
tion of private law and intellectual property law. This is my first monograph arising
from this niche.
Characteristically, the audience for private law is different from the audience for
intellectual property law. This monograph tries to address both these audiences.
The underlying private law concepts will be immediately familiar to private law-
yers, whereas their application to copyright law may speak to intellectual property
lawyers more. This is the beginning of a conversation where an effort is made to
more closely integrate copyright law with private law.
Acknowledgements
This work would not have been possible without the mentorship and continued
encouragement of my doctoral supervisor, Professor Graeme Dinwoodie. For this,
I will always be grateful. I thank Professor John Cartwright for his patience, em-
pathy, and time in reading my earlier drafts and giving me detailed comments.
I am grateful for all the feedback and guidance I have received from Professor Dev
Gangjee and Professor Robert Burrell at the Law Faculty at Oxford.
I am deeply indebted to the Leverhulme Trust for supporting the completion
of this monograph. The research visits made possible by the Trust during my
Early Career Fellowship deepened my engagement with this topic and remark-
ably transformed the way I presented this book. I am deeply thankful to Professor
Sam Ricketson and Professor Megan Richardson for their generosity with their
time and for the helpful discussion we had when I was a Visiting Fellow at the
Intellectual Property Research Centre of Australia in 2019. Many thanks are
also owed to Professor Elise Bant and Professor Andrew Christie, whose com-
ments were particularly helpful. I am also grateful to Professor David Tan and the
EW Barker Centre for Business Law for hosting me at the Law Faculty, National
University of Singapore. The discussions I had with Professor David Tan, Professor
Wee Loon Loy, Professor James Penner, and Professor Umakanth Varottil were en-
gaging and incisive. I am thankful to Professor Kung Chung Liu for inviting me
to Singapore Management University to present my work to an enthusiastic pri-
vate law audience. My particular thanks go to Professor Tham Chee Ho, who took
time to discuss the finer aspects of private law with me, and to Professor David
Llewelyn for his insightful comments. I am also grateful to Dr Pascale Chapdelaine
for her generous invitation for me to visit Windsor Law School, Ontario. I learnt a
great deal presenting to the audience at the LTEC Lab. Many thanks to Professor
David Vaver for taking time to discuss and share Canadian copyright law resources
with me. Many thanks also to Professor Lionel Bently for inviting me to present at
CIPIL and to Dr Henning Grosse Ruse- Khan for his helpful suggestions. The feed-
back I received from the audience was influential in shaping my work. I extend my
gratitude also to The Queen’s College, Oxford, for offering me a ‘home’ during my
postdoctoral fellowship and to Professor Nicholas Bamforth for his support, en-
couragement, and friendship.
My special thanks to Jyothsna Gurumurthy for all her hard work, diligence,
and excellent research assistance. This work was completed during the worst of
the pandemic of 2020 when the Bodleian Law Library had been shut for months.
Even through these difficult times, the unwavering support lent by the Bodleian
