Hyperlinking

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.

Browsing and Streaming

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.

Final Remarks

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.

Indexing

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.

Copyright Licence as a Legal Relationship

This chapter identifies what kind of legal relationship a copyright licence is. It begins by explaining what a ‘licence’ is, because the reliability of the doctrine of implied licence depends on the coherence of the concept of licence. The most widely used definition of a licence (derived from land law) as that which makes an action lawful without which the action would be unlawful reflects the universality of a licence, but it sheds little light on the constituents of a licence. The chapter therefore, turns to Hohfeldian analytics to identify the constituents of a licence that hold good regardless of the diversity of circumstances in which licences arise. The identification of the constituents of a licence helps in understanding the kind of transaction that a licence is. It helps to demonstrate that a licence is not in itself a contract, although a licence can be partly or wholly the consideration that moves from one party to another. This facilitates the distinction between a bare licence and a contractual licence. The distinction is important because a licence within a contract must be assessed as part of the bargain, and. therefore, different considerations go into implying a licence into a contract than if one were to imply a bare licence.

PARAINEN PEARL SHIPPING LTD v KRISTIAN GERHARD JEBSEN SKIPSREDERI AS

H1 Patents – European patents – Declaration of non-infringement – Ships – System “for” unloading powdery cargo – Cement handling – Patentee’s ship equipped with patented system declared total loss – Ship re-floated – Title to ship passing to third party – Patented system not operational – Restrictions as to future use – Ship re-sold – Patentee not exercising option to purchase – Later purchasers putting system back into operation – Whether work done amounting to making repair or replacement – Exhaustion of rights – Implied licence – Estoppel