Alethea Song Windsor Law LTEC Lab Student Writer JD Candidate 2020
On October 2, 2019, Windsor Law LTEC Lab hosted a presentation by Dr. Poorna Mysoor as she engaged the audience with details of her upcoming monograph about implied licenses in copyright law, to be published by Oxford University Press in 2020. An accomplished scholar, Dr. Poorna Mysoor is a Leverhulme Trust Early Career Fellow at the Faculty of Law at the University of Oxford. Dr. Mysoor completed her DPhil on implied licenses in copyright law in 2017 in the Law Faculty at Oxford. Prior to her academic career, she practised intellectual property law in Hong Kong and was a litigator in India.
Described by Dr. Pascale Chapdelaine as an “audacious and ambitious work,” the purpose of Dr. Mysoor’s monograph is to explore the ways in which courts may make better use of implied licenses in copyright law. Dr. Mysoor started her presentation by first situating implied licenses in the overall copyright discourse. When it comes to permitted works in copyright law, there are two avenues available to copyright users: one being express licenses granted by the copyright owner and the other being statutory limitations and exceptions to copyright infringement. But what happens when there is neither an express license nor a statutory exception? Dr. Mysoor proposes a well-developed framework of the circumstances under which the defense of implied licenses could be invoked by users of copyright works against a claim of copyright infringement. Dr. Mysoor advocates for the use and development of implied licenses because of their flexibility to address diverse situations: they are not as rigid as statutory limitations and not as formal as express licenses. Additionally, she believes that implied licenses can provide us with greater balance between author rights and user rights as implied licenses have the ability to provide situation specific responses, as well as the ability to be malleable with evolving technology.
Dr. Mysoor proceeded to discuss her methodology for implying a copyright license. As case law does not provide an explicit methodology for implying copyright licenses, the aim of the monograph is to create such a methodology in order to allow implied licenses to be more readily accepted by the courts, by providing a framework for judges in how they may imply a license in copyright. One of the essential aspects of her methodology is her characterization of implied licenses. The first characterization is the nature of the relationship a license gives rise to by distinguishing between bare licenses (allowing a particular use without taking money or consideration in return) and contractual licenses (when consideration takes place by exchanging a license for payment or other consideration). The second characterization is the basis for implying copyright license, which distinguishes between consent-based (when consent can be inferred to be given by the copyright owner), custom-based (customs prevalent in a trade, industry or profession), and policy-based reasons (when the state intervenes to achieve a public policy goal). The third characterization is the frameworks for determining the scope of implied licenses, such as consent-based implied bare licenses, consent-based implied contractual licenses, custom-based implied license, and so on.
With the framework and the purpose of her monograph laid out, Dr. Mysoor went on to introduce the right of communication to the public as applied to the internet, mainly from a European Union law perspective. Capturing internet and modern communication technologies was at the heart of creating this new right and thus far, case law covers various actions on the internet including internet links. However, there is still significant uncertainty surrounding the right to communication and when something can be regarded as “public communication”, such as hyperlinking within the internet for example. Dr. Mysoor used Svensson v Retriever Sverige AB (2014) and GS Media BV v Sanoma Media BV (2016) to illustrate the lack of certainty in the methodology used by courts to deal with such cases.
In Svensson, the applicants wrote articles that were published and made available on the Göteborgs-Posten website with the applicants’ authorization. The links to these articles were then made available on the respondent’s website via clickable links [hyperlinks], without authorization from the applicants. It was established that the initial communication to the public was made when the applicants made the articles available for public access via the Göteborgs-Posten website. The court held that, since the users of the respondent’s hyperlink would essentially lead readers to the initial site managed by the applicants, there was no communication being made to a “new public”. The “public” targeted by the copyright holders consisted of all potential visitors, which included the users of the respondent’s site who could access the same works via hyperlink. Therefore, since this did not constitute a “new public”, the court held that authorization of the copyright holder was not required for this communication to the public.
Unlike in Svensson, in GS Media, the linking activity pointed to a site where copyright works were communicated to the public without the copyright holders’ consent. In such cases involving linking to unauthorized works, the court introduced a distinction between hyperlinks that were provided without the pursuit of financial gain, (whereby a rebuttable presumption applies that the person did not know or could not reasonably have known the illegal nature of communication to the public of the works), and hyperlinks that were provided with the pursuit of financial gain (whereby there is a rebuttable presumption of knowledge of unauthorized communication to the public). Internet users are generally not aware and do not have the means to check whether posting hyperlinks would amount to an infringement of copyright. The rebuttable presumption in favour of links made without pursuit of financial gain is meant not to deter internet users from posting hyperlinks, which in essence is a major information disseminating function of the internet. In GS Media, a photographer for Playboy Magazine granted exclusive authorization to Sanoma Media to publish his photos. GS Media received an anonymous message that contained a hyperlink to a data storing website which contained the photos. GS Media subsequently released an article that contained the hyperlink to the said website, where the photos were communicated to the public without the authorization of the copyright holder. The presumption that GS Media had posted the hyperlink with knowledge that it infringed copyright could not be rebutted as there was evidence that GS Media had knowledge or should have known about the infringement. As a result the court found that GS Media had effected a “communication to the public” that infringed copyright.
Both decisions left many questions unanswered with regards to what constitutes “new public”, and about the presumptions that apply when the linking is made to unauthorized copyright works, and did little to solidify a concrete methodology for judges to use in future decisions.
This is where implied licenses could provide an interesting avenue and solution. Dr. Mysoor advocates for using implied licenses to reframe the hyperlinking dilemma by applying the defense of implied licenses to copyright infringement. Her methodology and approach to the characterization of licenses would provide a more structured conceptual basis to the decision-making process for courts to utilize when deciding whether actions on the internet may infringe copyright, which in turn, will allow lawyers to better advise their clients. In her presentation, Dr. Mysoor outlined the thought-process and reasoning behind her characterization of which type of implied licenses should be applied to Svensson and GS Media respectively. She then demonstrated how this characterization could be used to provide clearer answers to the many questions left unanswered by the courts in both decisions.
Overall, Dr. Poorna Mysoor’s presentation provided a very thorough analysis of implied licenses in the copyright discourse, as well as an in-depth look into her upcoming monograph to be released in 2020. By first outlining the current gaps in copyright law, her presentation truly allowed the audience to understand how her methodology will allow courts to further and more readily implement implied licenses into future copyright decisions, especially with respect to the internet and the right of communication to the public. My colleagues and I truly enjoyed Dr. Mysoor’s presentation, as expressed by Akhil Shah, J.D. Candidate 2021: “It was a truly informative session about new ways of thinking when it comes to copyright. I think as IP in general becomes a pressing legal concern with the growth of technology, it’s important for lawyers to be able to find innovative ways of addressing legal concerns for clients.” I myself am eagerly anticipating the release of Dr. Mysoor’s monograph and the impacts it will make on copyright law. It was truly a great experience to have her speak at Windsor Law. The video of Dr. Mysoor’s presentation is available here.
 Svensson v Retriever Sverige AB, C-466/12,  I-1.  GS Media BV v. Sanoma Media Netherlands BV, C-160/15,  ECR I-1.  Ibid note 1, para 8.  Ibid note 1, para 27.  Ibid note 1, para 26.  Ibid note 1, para 28.  Ibid note 2, para 53.  Ibid note 2, para 78.  Ibid note 2, para 78.  Ibid note 2, para 55.