An Extended Doctrine of Implied Consent – A Digital Mediator?

Abstract

This article explores whether an extended doctrine of implied consent can better balance copyright interests in the digital environment, particularly users’ access to digital content. Implied licences are analysed from a variety of jurisdictions including the United Kingdom, the European Union, Germany, the United States and Australia to submit that the role of implied consent emerges as a fundamental legal principle in both common and civil law jurisdictions. Given the significance of consent within the doctrine of exhaustion, the article also evaluates its application in the digital environment and the extent to which this could impact the proposal for an extended doctrine of implied consent. The boundaries of the extended doctrine along with its practical impact will be assessed through an example illustrating users’ access and interaction with digital content. It then becomes clear from the discussion that follows, that an extended doctrine of implied consent has the potential to balance copyright interests in the digital environment due to its status as a fundamental legal principle and inherent flexibility to consider a range of factors regarding users’ subsequent use of digital content.