An Extended Doctrine of Implied Consent – A Digital Mediator?

This article explores whether an extended doctrine of implied consent can better balance copyright interests in the digital environment, particularly users’ access to digital content. Implied licences are analysed from a variety of jurisdictions including the United Kingdom, the European Union, Germany, the United States and Australia to submit that the role of implied consent emerges as a fundamental legal principle in both common and civil law jurisdictions. Given the significance of consent within the doctrine of exhaustion, the article also evaluates its application in the digital environment and the extent to which this could impact the proposal for an extended doctrine of implied consent. The boundaries of the extended doctrine along with its practical impact will be assessed through an example illustrating users’ access and interaction with digital content. It then becomes clear from the discussion that follows, that an extended doctrine of implied consent has the potential to balance copyright interests in the digital environment due to its status as a fundamental legal principle and inherent flexibility to consider a range of factors regarding users’ subsequent use of digital content.

Desconsideração da personalidade jurídica e arbitragem: uma análise acerca da extensão da cláusula compromissória a partes não signatárias

O presente estudo visa analisar a aplicabilidade da desconsideração da personalidade jurídica na arbitragem, a paritr das teorias existentes a respeito da extensão da cláusula compromissória a partes não signatárias. Ao contrário do pregado por parte da doutrina e pelo STJ, acredita-se não ser possível a utilização das teorias do implied consent e group of companies, para fins de se justificar a possibilidade de desconstituir o princípio da separação patrimonial em procedimento arbitral.

RECENT DEVELOPMENTS UNDER THE BRUSSELS I REGULATION

This article considers recent CJEU case law on the Brussels I Regulation. Two aspects of Article 7(1) (which applies to matters relating to a contract) are considered: the first is whether the contract must be between the parties to the case; the second is whether membership of an association should be regarded as constituting implied consent to be bound by decisions of the association so that jurisdiction to enforce them may be taken under Article 7(1). The article also discusses recent case law on who counts as a ‘consumer’ in terms of Article 17.

Official Actions of the State of Oklahoma

This chapter addresses Article XXX of the Oklahoma constitution, which concerns the official actions of the state of Oklahoma. This article was adopted at an election held on November 2, 2010, making English the state’s official language. Supporters of such measures commonly argued it would ultimately increase the incentive for immigrants to learn English and assimilate and succeed in the United States, and would reduce budgetary pressures on the state. This provision does not prohibit private individuals and businesses from using whatever language they choose. It only affects official government business of the state of Oklahoma. In 2014, Oklahoma’s Court of Civil appeals upheld the article, concluding there is “no federal law requiring that Oklahoma’s Implied Consent Advisory [in the context of driving under the influence] be given in any language other than English.”

Implicitly Authorized Uses

When combatting allegations of copyright infringement, the defendant can argue that the copyright holder authorized the activity at issue, either expressly or implicitly. Exclusive rights under copyright have a common constituent: they represent activities that the copyright holder can authorize or prohibit, authorization being necessary to avoid liability for infringement. Authorization from the copyright holder may be explicit and not raise interpretative difficulties, or it may be implied. The doctrine of implied consent has not received harmonization at EU level but can be found in national laws with regard to interpreting a contractual relationship or conduct. Written agreements may include implied contractual terms and in this context, the implied license doctrine is viewed as a ramification of contract law. But implied authorization may be assumed even in the absence of an agreement or prior communication, where the conduct of the copyright holder gives the impression that a particular activity is permitted. This understanding of implied consent can be traced to German jurisprudence and a body of recent cases that have affirmed the existence of implied authorization where copyright holders did not signify their refusal to consent to a specific activity e.g. by not enacting access control mechanisms in their online content. The judicially created doctrine of ‘implied consent’ is crucial to the functioning of essential Internet facilities such as search engines. This chapter discusses the scope of this doctrine, its applicability to other Internet services, its potential to serve as a defensive rule, and the way in which Svensson can be read as introducing an implied consent defence into EU copyright law.