License
Encyclopedia : L : LI : LIC : License
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| Property law |
|---|
| Part of the common law series |
| Acquisition of property |
| Gift · Adverse possession · Deed |
| Lost, mislaid, and abandoned property |
| Bailment · Licence |
| Estates in land |
| Allodial title · Fee simple |
| Life estate · Fee tail · Future interest |
| Concurrent estate · Leasehold estate |
| Condominiums |
| Conveyancing of interests in land |
| Bona fide purchaser · Torrens title |
| Estoppel by deed · Quitclaim deed |
| Mortgage · Equitable conversion |
| Action to quiet title |
| Limiting control over future use |
| Restraint on alienation |
| Rule against perpetuities |
| Rule in Shelley's Case |
| Doctrine of worthier title |
| Nonpossessory interest in land |
| Easement · Profit (real estate)>Profit |
| Covenant running with the land |
| Equitable servitude |
| Related topics |
| Fixtures · Waste (law)>Waste · Partition |
| Riparian water rights |
| Lateral and subjacent support |
| Assignment · Nemo dat |
| Other areas of the common law |
| Contract law · Tort law |
| Wills and trusts |
| Criminal Law · Evidence |
A license or licence in the sphere of Intellectual Property Rights (IPR) is a document, contract or agreement giving permission or the 'right' to a legally-definable entity to do something (such as manufacture a product or to use a service), or to apply something (such as a trademark), with the objective of achieving commercial gain. Typically, the party giving the permission is referred to as the 'licensor' and the party receiving the licence as the 'licencee' or 'licensee'. To be able to license a right, the licensor must have legal title or 'proprietary right' to it. The licensor typically offers the license with specific limitations, such as the period of use, the territory of use, etc. Both the licensor and the licensee have specific obligations which is expressed in the body of the agreement or is expressed in the law of the country or region or an international covenant which governs the performance of the agreement.
In law, the document is the evidence of a license to be distinguished from the underlying license which is the actual permission to an act in a way that would be otherwise unlawful. Originally in reference to property, a license was the right of an individual to enter upon the property of another to do an act that would have otherwise been considered illegal as a trespass, such as walking in the woods, hunting game or swimming in the lake. To be distinguished from a license coupled with an interest which is an irrevocable license that granted some interest in land or in a chattel. Such a license could be enforced with an injunction. Licenses can be gratuitous, revokable at will (sometimes called a bare license) or a type of bailment.
Occupational
Licensing (or Registration) is required of a number of occupations and professions where maintenance of standards is required to protect public safety, for example physicians, psychologists, electricians are licensed in many countries.
Copyright, patent, and trademark
The holder of certain rights such as a copyright, trademark, or patent may (and often does) require that a license be accepted as a condition of being allowed to use, reproduce, or create an instance of the licensed work.The person who purchases a book owns the atoms and the right to resell or lend, but not the copyright to the text. In the United States this right to resell is part of the first-sale doctrine.
Although they are often subsumed under the rubric of "intellectual property", the laws of copyright, patent, and trademark differ widely in what may be required to be licensed. For instance, copyright over a piece of software code requires a license to distribute copies of that code (or a derivative work thereof); however, a software patent requires a license to implement the patented algorithm, even if it is independently rediscovered.
Copyright licenses in software
Computer users may think of licenses as in reference to end user licence agreements (EULA), which are claimed by vendors to encumber the user with extra restrictions besides the copyright, as a condition of granting permission under copyright law to use the work. However, an EULA generally purports to create a contract, not merely to grant a license.
Software licenses are often highly restrictive, and most software users do not read them in full. So-called "shrink-wrap" licenses and "click-through" licenses are common. Most limit the number of computers the software can be installed on, the number of users that can use the software, and apply other limitations that are not inherent in the technology. As a result, huge fortunes have been made by selling goods that have a minimal cost of reproduction on a per-item basis.
In the United States, the first-sale doctrine, Softman v. Adobe [link] and Novell, Inc. v. CPU Distrib., Inc. rule that software sales are purchases, not licenses, and resale, including unbundling, is lawful regardless of a contractual prohibition.
Free software licenses and open source licenses are a reaction to what many see as the unfair restrictions of proprietary software licenses.
Character and artwork licensing
Character and artwork licensing usually is negotiated between the owner and a licensor and results in a licensing fee payable to the artist or creator based upon the licensor's limitations on use of the licensed artwork. Larger companies with properties that have a proven track record of success can guarantee up-front payments (the "guarantee", in marketing terms) of thousands or millions of dollars from licensors (for example: Looney Tunes by Warner Bros., Harry Potter, Mickey Mouse from Disney, etc.) before products are even manufactured or sold to the public.
Academia
A licence is an academic degree in many European universities which is approximately equivalent to a master's degree. Originally, in order to teach at a university, one needed this degree which, according to its title, gave the bearer a license to teach. The name survived despite the fact that nowadays doctorate is typically needed in order to teach at a university. A person who holds a licence is called a licentiate. Currently, a licence is a middle-level degree between a master's degree and a doctorate.
In some countries, i.e. Poland, a licence is achieved before the master's degree (it takes 3 years of studies to become licentiate and additional 2 years to become master).
Licensing
Licensing is a form of strategic alliance which involves the sale of a right to use certain proprietary knowledge (so called intellectual property) in a defined way. The intellectual property may be registered publicly, for example in the form of a patent or trademark, as a means of establishing ownership rights. Or, it may be retained within the firm: referred to as know-how, it is commonly based on operational experience.Know-how for licensing purposes may include commercial and administrative knowledge as well as technical knowledge. The licensing agreement is the legal agreement setting out what is to be transferred from licensor to licensee and under what conditions.
The licensee usually makes a lump sum (front end) payment. Additionally there is normally a royalty rate which tends to vary around a ‘rule of thumb’ of 5%, depending on the type of industry and rate of technological change. A minimum performance (payment) clause is considered essential and some firms allow the licensee a ‘period of grace' to get production and marketing started. There are also some companies that agree on a cross-licensing deal, whereby they just swap licenses instead of paying.
According to UNCTAD, flows of royalties and licence fee receipts amounted to US$ 72 billion in 2001.
Licensing is often used where there is a barrier to trade or constraints on and risk in foreign investment. Licensing can serve as a Trojan Horse in the meaning that it opens the possibility for a company to enter a foreign market where it otherwise might have been forbidden. Problems with licensing is that it can create a potential competitor, and that it's often seen as a last-resort strategic alliance when other options are not available.
See also
- Dog licence, Driver's license, Television licence
- Intellectual property
- * Cross-licensing agreement
- * Statutory license
- * Compulsory license
- Aviator
- Private Pilot's License
- Amateur radio license
- Federal Communications Commission
- Music Licensing
External links
- [Danish local government rebels against MS license terms]
- [Licensing Act 2003] - England & Wales
- [Technology Licensing Practices in France] by Christian Bessy and Eric Brousseau - survey of patenting and licensing strategies in France
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