Study On Application Of China’s Copyright Implied Licensing

The implied license evolved from the civil law. When this concept appeared inthe context of copyright law, it demonstrates the connotation of civil law andconnotation of copyright law as a means of interests balancing. Technologydevelopment has led to a large number of copyright licenses and the emergence ofnew ways of using the works, the traditional permission of the copyright law isdifficult to meet the needs of a large number of works. Study of implied license theoryin China is progressing. Though in legislation and in court, the discussion of impliedlicense is very scarce. This paper analyzes the current situation of application ofchina’s copyright implied licensing, and conduct a comparative study of othercountries, to get a conclusion of in what circumstances and how can use impliedlicense in China.This thesis is divided into four parts apart from the Introduction and theConclusion:Part one discusses the basic theory of implied license. This part discusses the"implied" in the civil law, which leads to an implied permission from the civil lawinto the field of IP in the development of "implied license" connotation. Then wedefined the legal nature of the "implied license" in the copyright law. Clarified thedistinction between implied license and legal permission. At the same time,this part analyses the relationship between implied permission and contracts in civil law. Thispart supports basic theory for the next parts.Part two summarizes copyright implied license application status in China. Fromthe legislative and judicial aspects this chapter summarizes the copyright licensingapplication. Summarizes several relevant laws and regulations related todetermination of implied license application, and proposes legislative shortcomings ofthe implied license. The two different cases talked in this part present two differenttypical standard of the determination of copyright implied applicable.Part three studies the use of implied license comparing with the legislation of theother country. This part classifies the implied license application in two sides. The oneside is whether the implied license is based on a contract, the other side is based onthe different area. This part talks other countries’ cases, especially United States casesand Japanese cases, about the implied license application in the network environmentunder the legislative process.The fourth proposes the perfection of implied license application undercopyright. This part proposes advices in two aspects. First, clearly states theapplication standard and the extend of implied license by legislation. This articleargues that standard stated above shall be legally regulated. But on the scope oftraditional copyright area, the implied license should be applied in cautious when itcan be reasonably used in the field of network environment. Additionally severalcases will be talked about the standard in specific cases.