The Implied License in Copyright Discourse – Internet Linking and Moral Rights

(IPRinfo 2/2011)

Taina Pihlajarinne,
LL.D, Post-doctoral researcher, Institute of International Economic Law

Adopting a more flexible interpretation of the moral rights rules might be a feasible solution to resolve the difficulties in using the implied license doctrine.

The discourse on Internet linking has been more or less focused on the economic rights in copyright. In legal literature a relatively heavy emphasis has been put on the so-called implied license doctrine. This concerns situations where the linked material is in itself lawful: a right holder himself, or somebody with his consent, has uploaded the work.

It is assumed that the right holder has tacitly consented to linking. However, it is not clear where the doctrine actually fits into our legal system and what its scope is. It is, however, a plausible starting point.

No infringement of the paternity right
As regards moral rights, linking issues have not attracted nearly as intense attention. However, the implied license doctrine certainly has its place also in moral rights discourse. In German legal literature it has been suggested that the implied license doctrine may apply to the paternity right.

Consequently, it has been assumed that the creator usually is unable to claim infringement of the paternity right when the work has been hyper- or deep linked. The principal line of argument is that the author has made the work freely available on the Internet – a typical argument in implied license discourse. The author is presumed to be familiar with the special characteristics of the Internet and with the fact that attributing the work to the author is not common practice when creating a link. However, if the author has explicitly required his name to be used when linking, failure to do that would result in an infringement.

The implied license doctrine may also be relevant when assessing linking and the right of integrity. The link may, however, appear in a context which the creator cannot reasonably be presumed to have consented to, and which infringes the underlying premises and principles of the right of integrity. Thus, no license can be implied with respect to linking in a derogatory context.

Is linking ”limited use”?
In the Nordic countries, moral rights may neither be transferred nor completely waived. According to Section 3, paragraph 3 of the Finnish Copyright Act, the author may waive his moral rights with binding effect only with respect to use that is limited in character and extent.

But what does this mean when considering the implications of an implied license? It can be argued that an implied license constitutes permission for a limited use only, because it concerns only the Internet environment. However, one could also argue that linking practices are not foreseeable enough to constitute such a limited waiver.

The implied license doctrine may offer some guidance when assessing infringements of moral rights in the digital environment. However, most problems can be resolved by utilizing the flexibility inherent in the rules on moral rights. While the rules concerning economic rights leave only a limited space for flexible interpretation, the moral rights rules are far more flexible and abstract in nature.

This is the main reason for there perhaps not being an immediate need to create new and dynamic tools for assessment of moral rights in the digital environment. This is also true of the implied license construction.

Internet-specific rules possible to construct
According to the Finnish Copyright Act, infringement of the paternity right is dependent on the concept of ”proper usage”, and infringement of the right of integrity on what is deemed ”prejudicial to the author’s literary or artistic reputation”. Due to the flexible character of these criteria, the special circumstances of the Internet can easily be taken into account.

It is possible to construct Internet-specific rules based on a balancing of interests, either by applying the rules on moral rights or by using the implied license doctrine.

The differences lie in the viewpoints adopted. When assessing the proper usage requirement, it is natural to focus on established practices on the Internet. When discussing the implied license, attention should be paid to what the right holder can expect when distributing material on the Internet.

In the case first mentioned, the assessment is made on basis of the special circumstances of Internet use while in the latter case more relevance is given to the right holder’s (objective) point of view. The differences between these perspectives are almost non-existent. In most cases they result in similar outcomes. It might be a more feasible and simple solution to resolve the difficulties in using the implied license doctrine by adopting a more flexible interpretation of the moral rights rules.