Define: Implied Licence By Legal Estoppel

Implied Licence By Legal Estoppel
Implied Licence By Legal Estoppel
Quick Summary of Implied Licence By Legal Estoppel

Legal estoppel can create an implied licence, which grants someone permission to use a property or intellectual property without express consent from the owner. This type of licence arises when the owner’s actions lead the other person to believe they have permission to use the property. The licence is implied because it is not explicitly stated, but rather inferred from the owner’s behaviour. For instance, a patent owner who encourages someone to manufacture a product that infringes on their patent may be granting an implied licence to use the patent. Similarly, a software company that sells a product with a licence agreement allowing the user to install the software on multiple computers, even though the agreement does not explicitly state this, creates an implied licence by legal estoppel.

What is the dictionary definition of Implied Licence By Legal Estoppel?
Dictionary Definition of Implied Licence By Legal Estoppel

Legal estoppel creates an implied licence that allows someone to do something that would typically be illegal, based on the actions or words of the property owner. This permission cannot be revoked, similar to giving someone a key to your house and then trying to remove it later.

Full Definition Of Implied Licence By Legal Estoppel

Implied licence by legal estoppel is a nuanced concept in intellectual property law, particularly within the realm of copyright and patent rights. This legal doctrine allows certain uses of a protected work without explicit permission from the rights holder, provided that certain conditions are met, leading to an equitable balance between the rights holder and the user. This overview explores the theoretical foundations, judicial applications, and implications of implied licence by legal estoppel within British jurisprudence.

Theoretical Foundations

  • Definition and Scope Implied licence by legal estoppel occurs when a rights holder, through their conduct, creates an expectation that they will not enforce their rights against a particular use of their intellectual property. Unlike an express licence, which is explicitly granted and documented, an implied licence arises from the circumstances surrounding the use of the intellectual property and the interactions between the rights holder and the user.
  • Legal Estoppel Legal estoppel is a principle preventing a party from going back on their word when another party has relied on that word to their detriment. In the context of implied licences, it means that if a rights holder has allowed the use of their intellectual property in a way that leads the user to believe they have permission, the rights holder may be estopped from later claiming infringement.
  • Equity and Fairness The doctrine is rooted in the principles of equity and fairness, aiming to prevent unfair detriment to a party who has reasonably relied on the conduct of the rights holder. This ensures a balance where the rights holder cannot exploit their position unfairly after leading the user to believe their actions were permissible.

Judicial Interpretation and Case Law

  • Historical Context The concept has evolved through various judicial decisions, shaping its current application. Early cases primarily dealt with property and contract law before the principles were extended to intellectual property contexts.

Key Cases in British Law

  • NLA v. Marks & Spencer plc [2001]: This case highlighted the court’s willingness to consider implied licences within copyright law. Marks & Spencer had copied articles from newspapers, believing they had implicit permission from the National Licensing Agency (NLA). The court examined the conduct of the NLA and concluded that an implied licence was present due to the NLA’s lack of objection over an extended period.
  • Monckton v. British Telecommunications plc [2002]: This case involved BT using software without explicit permission but with the software provider’s knowledge. The court found an implied licence based on the provider’s conduct, such as ongoing support and updates, which indicated an acceptance of BT’s use.
  1. Criteria for Establishing an Implied Licence Courts generally consider several factors to determine whether an implied licence exists:
    • Conduct of the Rights Holder: Whether the rights holder’s behaviour suggested consent to the use of their intellectual property.
    • Reasonable Reliance: Whether the user reasonably relied on the rights holder’s conduct.
    • Detriment to the User: Whether the user would suffer a detriment if the rights holder were allowed to enforce their rights.
    • Communication and Acquiescence: The nature of communication between the parties and any tacit or explicit acceptance of the use.

Practical Applications and Implications

  • Business and Commercial Practices In the commercial context, implied licences by legal estoppel can significantly affect business operations and strategic decisions. Companies often rely on established practices and conduct to inform their use of intellectual property, making this doctrine crucial for mitigating litigation risks.
  • Software and Technology The software industry frequently encounters issues of implied licences, especially with the widespread use of open-source software and shared technologies. Developers and companies must be aware of how their conduct might imply licensing terms.
  • Creative Industries In the creative sectors, such as film, music, and publishing, implied licences can arise from collaborative practices and informal agreements. Artists and producers need to clearly understand the implications of their conduct and communications.
  • Potential Risks and Legal Strategies Both rights holders and users must be strategic in their conduct to either avoid unintentionally granting an implied licence or to ensure they have a defensible position if accused of infringement. Clear documentation, consistent enforcement of rights, and explicit agreements can mitigate risks.

Limitations and Challenges

  • Ambiguity and Uncertainty The inherent ambiguity in implied licences poses challenges for legal certainty. Parties may struggle to predict how a court might interpret conduct and communications, leading to potential disputes.
  • Burden of Proof Establishing an implied licence often requires substantial evidence of the rights holder’s conduct and the user’s reasonable reliance. This evidentiary burden can be significant, particularly in complex commercial relationships.
  • Evolution of Jurisprudence As technology and business practices evolve, the application of implied licences by legal estoppel may also change. Courts may need to adapt their interpretations to new contexts, such as digital content and international collaborations.

Comparative Perspectives

  • United States In the U.S., the concept of implied licences is also recognised, particularly within copyright law. The principles are similar, focusing on the rights holder’s conduct and the user’s reliance. However, U.S. courts may place a stronger emphasis on the objective manifestations of consent.
  • European Union EU law, while harmonised to some extent, allows for variations in how member states interpret implied licences. The EU Copyright Directive provides a framework, but national courts have discretion in applying the principles, leading to potential differences across jurisdictions.
  • International Context International treaties, such as the Berne Convention, do not explicitly address implied licences but establish overarching principles of copyright protection and enforcement. National interpretations of implied licences must align with these international obligations.


Implied licence by legal estoppel serves as a vital mechanism within intellectual property law, balancing the rights of holders with the equitable expectations of users. Rooted in the principles of fairness and reasonable reliance, this doctrine requires careful navigation by rights holders and users alike. The evolving nature of technology and business practices necessitates ongoing judicial interpretation and adaptation, ensuring that implied licences remain relevant and fair in a dynamic legal landscape. Understanding the nuances and judicial precedents within British law provides a foundation for effectively managing and negotiating the complexities of implied licences in various contexts.

Implied Licence By Legal Estoppel FAQ'S

An implied license is a permission granted by the owner of a property or intellectual property without any formal agreement or written contract. It is based on the actions or conduct of the owner that suggests permission for others to use the property or intellectual property.

Legal estoppel is a legal doctrine that prevents a person from asserting a claim or defence that is inconsistent with their previous statements or conduct. It is based on the principle that a person should not be allowed to take contradictory positions in legal proceedings.

Legal estoppel can be invoked to prevent a person from denying the existence of an implied license. If someone has previously acted in a way that suggests they have granted an implied license, they cannot later deny its existence based on legal estoppel.

Yes, an implied license can be revoked by the owner of the property or intellectual property. However, the revocation must be communicated clearly to the person who was granted the implied license.

If someone continues to use the property or intellectual property after the implied license has been revoked, they may be liable for infringement or trespassing, depending on the nature of the property.

In general, an implied license is personal to the individual who was granted the license and cannot be transferred to another person without the explicit permission of the owner. However, there may be exceptions depending on the specific circumstances and applicable laws.

The existence of an implied license can be proven through evidence of the owner’s actions or conduct that suggests permission for others to use the property or intellectual property. This can include past practices, industry customs, or verbal statements.

Yes, an implied license can be created unintentionally if the owner’s actions or conduct reasonably lead others to believe that permission to use the property or intellectual property has been granted. It is important for owners to be aware of their actions to avoid unintentionally creating implied licenses.

Implied licenses are generally recognized in most legal jurisdictions, although the specific requirements and limitations may vary. It is advisable to consult with a legal professional familiar with the laws of your jurisdiction to understand the specific implications.

Yes, an implied license can be used as a defence in a legal dispute if the person accused of infringement or trespassing can prove that they had a valid implied license to use the property or intellectual property. However, the burden of proof lies with the person asserting the defence.

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This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 7th June 2024.

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