Copyright

Guest Post: More on the legitimacy of assumed consent


Readers may recall the strange email that the news website Medianama received from Thomson Reuters recently. (We wrote about it here). In short, Thomson Reuters had sent Medianama an email stating that unless they explicitly denied them permission, they would assume permission to use and reproduce Medianama’s content. While Thomson Reuters has since sent in an apology to Medianama, the question of the validity of such an email prompted many of our readers to send in some very pertinent comments. One of our regular readers, Abhishek Pandurangi, has also sent in a guest post for us, looking further into this question. Abhishek is an Indian IPR Attorney and Founder, CEO of closer2patents, an IPR Solutions Firm. This piece does not intend to provide any legal opinion nor is intended to be biased to any person or group of persons whatsoever. Abhishek has also previously written for us on the change in fees by new patent rules, here.

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The SpicyIP post titled ‘all your content belong to us‘ touched upon the aspect of Section 52(1)(m) of the Copyright Act, but more so it surfaced the deliberation on a much larger concept, that of assuming acceptance or consent on non-response by a party likely to be affected by an action consequent to such assumption.

Of many expressions we use while communicating, can the lack of it qualify as one? We all choose silence as a way of dealing with situations, but can it be concluded to mean something definite, taking away the very purpose of choosing it? If not at a philosophical level, it is both interesting and important to understand how the eyes of law would view this subject, especially while we now encounter increasing number of contracts/notices implying acceptance by virtue of non-response.

Legal Maxim ‘qui tacet consentire videtur’ ( ‘he who is silent is taken to agree’) , which is typically tailed with ‘ubi loqui debuit ac potuit’ (‘he ought to have spoken when he was able to’) essentially lays the foundation of what should be the general principal to construe meaning of silence or non-response.

It only seems logical that unless non-response is coupled with at least a component of implied consent (implied of course being subjective but demands a minimal of factor beyond mere silence), the act or omission will not fit the dictionary meaning of consent or acknowledgement whatsoever.

In context of ‘ubi loqui debuit ac potuit’ , that minimum component would become existence of a duty to responded on his/her part in case of non-agreement, which understandably gives birth to a consequent right for the other party to assume consent. It would be important however that this condition of ‘ought to have spoken’ be strict with the other party acting in good faith.

Logical hypothesis aside, the Honorable Courts of India take a similar view of this.

In State Of Tamil Nadu vs Subramaniam Servai, the Madras High Court judgment reads:

It has observed that the general rule is that an offer is not accepted by mere silence on the part of the offeree. But in the facts of a given case acceptance of a suggestion may be sub silentio reinforced by subsequent conduct. There may be further facts which taken with the offeree’s silence, may constitute acceptance……Acceptance cannot be inferred from silence alone save in the most exceptional cases where it seems better to say that the offer had been accepted by conduct such as of reciprocal inactivity in abandoning the arbitration proceedings, or by closing, or disposing of the relevant files.

In Ramji Dayawala & Sons (P) Ltd vs Invest Import, also cited in the above judgment, the Supreme Court judgment reads:

The general rule is that an offer is not accepted by mere silence on the part of the offeree. There may, however, be further facts which taken together with the offeree’s silence constitute an acceptance. One such case is where a part of the offer was disputed at the negotiation stage and the original offeree communicated that fact to the offerer showing that he understood the offer in a particular sense. This communication will probably amount to a counter offer in which case it may be that mere silence of the original offerer will constitute his acceptance. 

To look at a couple of the International Legal texts on the topic:

– United Nations Convention on CISG : A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.

– Principles of European Contract Law : Article 2:204(2) : Silence or inactivity does not in itself amount to acceptance

Coming to the Section 52(1)(m) in the Copyright Act, 1957, the section seems to suggest that even a notice or offer would not be required for reproduction in absence of express reservation of right, and consent & non-response shall not even come into picture. This section of the Copyright Act aligns with Article 10bis(1) of the Berne Convention for the Protection of Literary and Artistic Works (http://www.wipo.int/treaties/en/text.jsp?file_id=283698) which reads as follows:

“It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.”

Noticeably, the mention of the term ‘press’ is missing in Section 52(1)(m), and so is the requirement of clearly indicating the source.

The minimum take home I believe is the understanding that an open ended one sided notice/contract clause asserting assumption of acceptance against non-response would typically not pass the test of legal requirements. The case for publishing third party content deemed protected under Copyright, however, may be slightly different.

PS: For whatever it is worth, please extend due respect to the Copyright Act & Berne Convention, and expressly reserve the right of publication of your content.

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