RIDA 238 | 10-2013

Doctrine

Implied consent - a silent revolution in digital copyright law. U.S., german and french perspectives

Pierre-Dominique CERVETTI

Code : 238-D1
Keywords :
Fair use, Copyright, Technical intermediary, Search engine, Internet, tacit, implied, Germany, United States of America

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protection measure, is sufficient to infer an implied license granted to search engines to reproduce it.

The aim of this study is to present the theory of implied license applied by the U.S. court (Part One) and to discuss the impact of this approach on the European copyright system based on the examples of Germany (Part Two) and France (Part Three).

In U.S. law, implied license is a doctrine with long roots in contract law and patent law, occasionally touching on copyright law. The decision in Field v. Google delivered in 2006 by the U.S. District Court for the District of Nevada recognized implied license as a defense to copyright infringement claims in the digital environment.1 Legal scholars largely advocate the Field doctrine to reconcile copyright law with social norms2 while, in case law, some decisions have since cited it positively3 and others negatively.4

It was the conflict between copyright and social norms (I) that led the court to apply the doctrine of applied license in the digital environment (II).

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