[This is the second post in a three-part series on collaborations. The first post is here.]
In a previous post I discussed the different forms of copyright licences. There is one type of licence that I did not mention there and that is the implied licence.
The law will sometimes imply a licence in certain circumstances, even without any positive act by the copyright owner to grant a licence. Where work is provided for a particular purpose, then the law may imply a licence to use the work for that purpose.
Implied licences may be relevant to collaborations because often work is provided to fulfill a particular purpose. Let’s take the example where Sansa and Arya collaborate on an e-book with the intention that the book be used to promote subscribers to their blogs. In that situation there may be an implied licence granted to each other to use the e-book for that purpose, such as by posting extracts of the book on their blogs or giving readers copies of the e-book in exchange for signing up to a mailing list. Similarly, when Daenerys does the design for the e-book knowing that the girls intend to make the book available on their blogs, there may be an implied licence that Dany gives the girls permission to put the designed book, including her published edition copyright, on their blogs.
Implied licences can be a helpful safety net where you have already collaborated with someone else and then engaged in the kind of conduct described above (such as posting extracts to your blog) without that person’s express permission. But the problem with implied licences arises because of their very nature – they must be implied by a court after the fact and usually after a dispute. They are uncertain and therefore an unsteady legal foundation on which to rely.
The better alternative is always to talk with your collaborators about the nature of your collaboration and what you can and can’t do with the resulting work. Express agreement trumps an implied licence every time. Next week’s post (the third in my series on collaborations) will address what you should be doing and talking about right from the beginning of your collaboration.