In Australia, as in many countries, the common law will construct or imply a contract in many circumstances. Yorston Fortescue and Turner define an implied contract as follows (at 55-56):
An implied contract is one in which the agreement is not reached by words, written or spoken, but by acts or conduct of the parties. An example of this type of contract is where you hail and enter a taxi. By this act the law implies that you promise to pay the fare to your destination and the taxi driver impliedly agrees to transport you.
The use of contract law in combination with copyright law is not a new phenomenon. Contract law is used to transfer ownership of copyrights between creators and investors – one need look no further than a recording contract between an artist and a record label as an example of this. Contract law is also used to establish licenses which restrict uses of copyright works - those that take the time to read the contracts associated with iTunes, Napster or any of the mainstream digital music stores would see that there are terms and conditions above and beyond the rights traditionally given to copyright holders. Similarly but with the opposite effect, open content licenses, such as the suit of licenses developed by creative commons, provide consumers with greater rights than those offered to them under copyright legislation.
I have been considering for some time whether there might be scope to argue for an implied license with respect to copyrights on the internet. In many circumstances it seems that creators make their works available on the internet without adding an open content license and yet do nothing to enforce their copyrights. This situation creates a great level of uncertainty for many users, particularly those that are aware of the automatic application of copyright and who seek to do the right thing. Those that are oblivious to the operation of copyright law are in constant danger of being sued for what they consider to be normal behaviour on the internet – something as simple as printing a recipe could leave them liable to pay damages. This is despite the fact that the general expectation in society is that those that make this information available are impliedly consenting to other people using it.
When it comes to music this is particularly problematic as many bands make tracks available without attaching licenses, mainstream copyright holders are vigorous (but not effective) in policing the uses of their works and the average person is left with a complex and expensive process to secure licenses without having any real way of knowing whether or not they are needed or will be forthcoming. Creative Commons is an excellent way of providing this information and expanding the rights traditionally offered, however the fact remains that it has not yet reached the level of saturation which overcomes these obstacles and it requires positive steps to be taken to advise others of the additional rights that are in place.
To me it seems more appropriate both from a policy and practical point of view to alter the default position of copyright through the use of an implied license mechanism. It would take very little for the courts to develop a system of recognition for non commercial uses on the internet.
One way would be to develop the doctrine of implied licenses to allow all non commercial uses regardless of the amount of the copyright work that has been used. This would prevent copyright owners from creating unnecessary burdens on the free flow of information and would not enable them to control what should be fair use of their works. In my mind this would be the best option as it would provide a level of certainty not currently available and reflect they way most people use the internet today.
Another option would be to allow all non commercial uses unless a copyright owner has taken steps to have the use of the work removed from the internet. In some respects the DMCA and equivalent legislation allow this to take place already but it does not provide the level of certainty needed. The DMCA is under constant scrutiny for being abused with copyright works being removed from the internet even when the use has been lawful. The difference between this form of an implied license and what is in place now would be that the average person would be entitled to expect a right to non commercial uses unless some positive step is taken by the copyright owner to exert their rights. This would secure the place of fair use/dealing and the public domain rather than the current situation which sees these concepts under constant threat.
Another option would be to enable all non commercial uses but to require notification of the use to the copyright holder up front and enable them to exercise a level of discretion in having the work removed from the internet when it does not fall within the current scope of fair dealing or fair use rights. This would overcome the difficulty many copyright holders currently have in both tracking the uses of their works and policing the commercial and unlawful uses that take place. To be possible however such a system would require an effective and ongoing registration system with minimal administrative costs for the searching and location of copyright owners.
In effect, a blanket implied non commercial license would alter the default position for copyright on the internet. It would enhance the flow of information, support cultural diversity and inturn free expression and democracy. Given the present level of influence of the major copyright holders over the legislators, it seems unlikely at present that copyright law itself will be altered to reflect the way most people use internet content. Nonetheless it may still be possible for the common law to step in and create the same effect through the doctrine of implied contracts.
Further Reading
Yorston, Fortescue and Turner, Australian Commercial Law (20th .ed., 1994)
Creative Commons, http://www.creativecommons.org/
TechDirt, Even Lawyers Are Confused About What's Legal Or Not In The Prince/Radiohead Spat (12 June 2008) <http://www.techdirt.com/articles/20080610/1651401368.shtml> at 13 June 2008
TechDirt, Would You Believe Copyright Infringement Notices Are Based On Faulty Information? (5 June 2008) <http://www.techdirt.com/articles/20080605/1227001318.shtml> at 7 June 2008
TechDirt, Judge Dismisses DMCA-Abuse Lawsuit Over Video Of Baby Dancing To Prince (28 April 2008) <http://www.techdirt.com/articles/20080428/105749968.shtml> at 30 April 2008
TechDirt, Can The DMCA Be Used To Stifle Speech? (28 March 2008) <http://www.techdirt.com/articles/20080326/194543660.shtml> at 30 March 2008
TechDirt, Air Force The Latest To Make Illegal False DMCA Claim (10 March 2008) <http://www.techdirt.com/articles/20080307/162737475.shtml> 7 March 2008
TechDirt, DMCA Misuse: Trying To Take Down A Negative Movie Review (14 January 2008) <http://www.techdirt.com/articles/20080113/235553.shtml> at 18 January 2008
(There are heaps more DMCA abuse articles on my other weblog: http://www.ocaustralia.blogspot.com/ - go for your life!)
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