On Copyright Implied License Doctrine

The implied license doctrine has deeply rooted in civil law. First of all, an establishmentof civil conduct can be inferred under implied intent. In the second place, reliance interestbased on principle of honesty and credibility requires proper existence of implied licensedoctrine. Further more, implied license derived from multiple source of law can be used as atool to construe and rectify certain contracts. The dissertation has also mentioned impliedlicense in other areas of intellectual property law other than the copyright law alone. Forinstance, implied license base on first sale doctrine in patent law emerged much earlier than incopyright law, while in trademark law the doctrine is often seen in situation of parallelimports.Before having a look at the copyright implied license doctrine, we have to introduce thecopyright exhaustion doctrine, which has so many similarities compared with implied licensedoctrine but limited in range of application. As in matter of system and formats copyrightlicensing，implied license doctrine can be applied in informal contracting and non-exclusivelicensing. Based on these analysis, the dissertation has extracted the concept and features ofcopyright implied license, i.e. the copyright owner delivered a non-explicit conduct which canbe inferred to know his true intent, and lead to the legal effect of entering a copyrightlicensing contract. Some scholars view implied license as a copyright restriction, similar tostatutory license and fair use, while the dissertation considered it negative due to the legalityof law and the way copyright owner’s control over their works. However, in order to preventimplied license to be abused in practice, the “three-step test” standard in accordance with theinternational conventions should be introduced to limit the doctrine so that it can only be usedunder certain circumstances.In the aspect of legal practice, the dissertation put it into two parts—the USA and China.The USA is the country of case law. From the traditional copyright context to the Internetenvironment, the implied license doctrine has evolved from a mere contractual rule to adoctrine with an open standard that embodies new spirits. In China, the legislation on impliedlicense is limited. Among some of them, the nature is still blur of whether implied license orstatutory license is used. In legal practice, there has been the application of implied license incopyright judicial cases, while in another case, the misreading of the system are still there.As the technology develops, the copyright law in Internet environment has become more flexible. View copyright implied license from a practical point, it has advantages of reducingtransaction cost and promoting the dissemination of information, as well as balancingbetween the interests of various parties. The scope of copyright implied license includes fourareas: network search engines, digital libraries, specific virtual spaces and network mediareprint excerpts of traditional media works.In the end, the dissertation summarizes the theory and practice on copyright impliedlicense, holding that although the doctrine is so important that has a versatile use especially inInternet context, for legal stability and practical concern, the theory of copyright impliedlicense is basically adequate under today’s copyright theory and law provisions. There is noneed to establish a whole system of copyright implied license doctrine. Nonetheless, thedoctrine has already been an open standard and a practice; it would not be limited to the lawbut to be an important way of licensing in copyright law in the future.