Research On Implied License System Of Intellectual Propetry

Implied license of intellectual property refers to the intellectual property licensingthat although there is no clear written or oral meaning made by the holder ofintellectual property (the licensor), whose act or silence under specific circumstances issufficient for the opposite party (the licensee) to believe that a license has been madeby the holder of intellectual property (the licensor). Implied license of intellectualproperty system originated in the United Kingdom, has been developed both incommon law countries and civil law countries. Implied license system of intellectualproperty has been accepted gradually by China’s intellectual property legislation andjudicial practice, and has been beginning to play it’s role.The meaning representation theory, the trust protection theory and the theory ofthe balance of interests can provide theoretical support to implied license system ofintellectual property and prove its legitimacy. The implied license of intellectualproperty can be inferred from the specific behavior of rights holder (the licensor), or tobe inferred from the silence of rights holder (the licensor) under certain circumstances;Trust protection theory is for the purpose of protecting the reasonable reliance of theopposite party (the licensee),and plays an integral role in the determination of theimplied license intellectual property,also is an essential element of the establishment ofimplied license of intellectual property;The theory of the balance of interests is for thepurpose to balance the interests between rights holder (the licensor) and the oppositeparty (the licensee). From the view of essence, the implied license system ofintellectual property is a special system of licensing, a system of limitation of rightsand a system of infringement defense.Implied license system of intellectual property includs patent implied licensesystem, copyright implied license system and trademark rights implied license system,the identification of implied license is most core and complex problem.Theidentification of implied license can be inferred from the behavior-based impliedlicense of intellectual property and silence-based implied license of intellectualproperty. The identification of behavior-based implied license of intellectual property can be inferred mainly on the specific behavior of the holder of rights (the licensor),the accused infringer’s reasonable reliance and other factors; The identification ofsilence-based implied license of intellectual property can be inferred mainly on"knowingly" of the holder of rights (the licensor), the accused infringer’s reasonablereliance, the period of delay in exercising rights of the holder of rights (the licensor)and other factors.The function of implied license of intellectual property is not only reflected in theoperation of the system itself, the functionality has been expanded in the staggereddevelopment of implied license and exhaustion of rights, applying implied license tosolve the issue of parallel importation practice. In addition, from exhaustion of rightsto the parallel importation, the functionality has been expanded from contractinterpretation to the policy options.In the association of implied license and exhaustionof rights, implied license is mainly played a role of contract interpretation. Applyingthe implied license to solve the problem of parallel imports can correct theinternational exhaustion principle, make the parallel import policy more flexible, makeit more in line with China’s national conditions, achieve our national interests better.Implied license of intellectual property originated in intellectual propertylicensing contract, but the system has the characteristics of exceeding the contractualrelationship, no longer limited to one-to-one licensing model, to adapt to therequirements the network copyright massive authorized. Although implied license ofintellectual property has the characteristics of exceeding the contractual relationship,itis still dependent on the position and principles of contract interpretation, we shouldexamine the behavior of rights holder(the licensor), reasonable reliance of the oppositeparty(the licensee), the principle of good faith, industry practice and other factors inthe identification of network copyright implied license.By compare the the networkcopyright implied license system and the statutory licensing system, we can discoverthe irreplaceable institutional value of implied license system. Statutory licensingsystem adds more stringent restrictions on copyright owners, lacks of flexibility,expanding the statutory licensing system may conflict with international conventionsin the field of network copyright. In contrast, the implied license system can adapt tothe requirements in the network environment to balance the interests in it, and canreduce the impact on the existing system, its applicable value is increasing gradually.The copyright fair use system which plays an important role in the field of traditional copyright is encountering difficulties in the network environment, difficult to play aninfringement defense mission in many cases.The implied license system has significantinstitutional advantages compared to the fair use system in responsing to therequirements of the network environment, can effectively make rational use of theinadequacies of the fair use system. The implied license system and fair use system canform a pattern of division of labor, to balance the interests in the field of networkcopyright better. Among the internet industry developing rapidly,the implied licensesystem has been used as industry-specific practice accepted generally. We shouldintroduce a comprehensive system of implied license in the field of network sharingspace and network search engine, implied license system should be introduced in thenonprofit field of digital libraries. We should fully protect copyright holder’s right toachieve equal pay,and protect the operation of the implied license system through theimprovement of the system of collective management of copyright in designingnetwork copyright implied license system.In constructing and perfecting the system of intellectual property impliedlicense,we should take national interests and national security as the starting point andconform to the trend of internationalization of intellectual property, in line with thedirection of the development of culture, science and technology, emphasis onspontaneous order and practices of the industry and trade, fully draw on the theinternational mature experiences and practices, establish the intellectual propertyimplied license system in line with China’s national conditions. We should stipulateimplied intention terms and trust protection clause in China’s future Civil CodeGeneral Provisions. We should make a general provision of patent implied licensesystem in "Patent Law",and make the system clearly.We should make a generalprovision in "Copyright Law" for copyright implied license system and specifynetwork copyright implied license system; We should make general provisions of thetrademark implied license system in the "Trademark Law".