The Re-construction For Implied License Of Copyrightlaw Of PRC

Since the Common Law of America and England established the mechanism of implied license in copyright law in a way of case law, the implied license of copyright had enjoyed a rapid expansion as the times’ development. However, in China’s domestic law there are a lot of gaps on implied license of copyright. The Lack in litigation has led to the chaos both in the theory research and judicial practice.In civil law, the implied license is a type of civil legal act with declaration of will in essence, of which the basic content is to authorize others to conduct behaviors. The difficulty of the judgment for implied license often lies in the inquiry for the party’s true intention. However, with the development of the society, licensing behavior in copyright law becomes more complex. At the same time, too much more inquiry for the true meaning of the right owner is hard to enhance the smooth of the transaction and make them security. And from the point of view of the special nature of copyright law, the inquiry for the party’s true intention in the basic theory of traditional civil law system can not meet the needs of social development, which means it is quite urgent to establish a unique mechanism for implied license of copyright law, a unique operation specification to distinguish itself from the general implied license in civil law, which grants the implied license of copyright law a specific value to exsit, develop and to be researched.This article firstly makes implied license of copyright law specialized to solve the problem of the discrepancies between the general implied license in civil law and implied license of copyright law, which also demonstrates the necessity of special rules for the implied license of copyright law exist. This paper argues that implied license of copyright law is completely different from the general implied license in civil law by two reasons: First, implied license of copyright law is beyond the contractual relationship; Second, it has to safeguard the interests of the copyright license user’s trust. Subsequently, the Paper was rebutting some mainly theories on implied license of copyright law on the basis of the above demonstrations theories were mainly to draw the features of implied license of copyright law: a) The implied license of copyright law is a limitation rather than the content of some kind of right; b) The implied license of copyright law should not be classified into any rights restrictions under copyright law; c) Under civil law theory the implied license of copyright law is a right of defense, not the defense itself, which suggested that without the presentation of the implied license of copyright law from the party, the judge should not take the initiative to incite firstly. At last the Paper demonstrates its arguments of implied license of copyright law by examples to address some typical situations that the implied license of copyright law should be applied, in order to accomplish the process of logical argumentation from induction to deduction. Those situations could be as following: a) Participation in the creation of a special type of work; b) Crawling information through the Internet by information technology; c) Reproducing through the Internet the works that are firstly published on the Internet; d) The delegation of copyright works involving the third parties beyond the contract.Meanwhile, this Paper re-constructs the new mechanism of the implied license of copyright law: a) The intention of the license of the right owner lies in whether the right owner has a reasonable expectation of the copyright’s usage later on; b) The expectation of the user should be reasonable; c) the scope of the copyright license should be limited in the scope comforting to the right owner’s reasonable expectation. The Paper introduces with comments the current situation of the legislation and practices for the implied license of copyright law in domestic jurisdiction and the attitudes towards it. Also, this Paper provides some advices on it by comparing the new mechanism with the current situation from two aspects: litigation and jurisdiction. The current litigation situation that only admits the legislative implied license under a contractual relationship, leads to the tacit approval from the court, or in other words, an attitude to avoid the explanation for the legitimacy of some certain causes involving copyright infringement. To re-construct the rule system of the implied license of copyright law, China should: a) turn loose the legislation limitation in civil law to allow the existence of an implied license in copyright law, and establish its mechanism as a legal loophole to fill in; b) as in the judiciary practicing area, the personality interests in the copyright should be respected; furthermore, it should be quite cautious to judgment industry practice.