Listening to David's podcast on the concept of a licence, described, with reference to the OED, as a government-granted permission to do something which would otherwise be illegal, and the particular emphasis on the government-centric nature of licence, made me think.
What struck me is that, under English law at least, a licence is a very simple notion, far simpler than the definition proposed here — a licence is simply a permission granted by someone who has a power to restrict others from performing the act in question. When I permit someone to perform an act restricted by copyright in respect of a copyright work of which I am the owner, I am granting a licence; likewise, when I permit someone to walk over my land, I grant them a licence. In each case, I have the right to exclude — central to the notion of ownership of property — but I choose to permit.
Although a subject of some considerable debate, a licence, to my mind, is fundamentally different from a contract, since it requires no meeting of the minds — it is devoid of any of the formality required for a contract, such as offer, acceptance, consideration, or an intent to create legal relations. Instead, as a bare permission, I am entitled to do something which I would otherwise not be entitled to do — this need not be something which would otherwise be illegal, though, but merely something which would trigger some form of liability; indeed, to my mind, a licence is generally granted to permit something which would otherwise be a tort (such as trespass, or copyright infringement) rather than a crime.
When we consider licensing in the telecoms context, as opposed to either a statutory or state monopoly, or an authorisation, I would see a licence as being closer to a negotiated agreement than a bare licence in that, in return for a payment (consideration) and the agreement to abide by certain terms, one party secures the right from another to provide a telecommunications service — the fundamental parts of a contract would seem to be made out. Indeed, since a licence is generally revokable at will, absent the equitable protection of estoppel, I would perhaps ask if it is not the contractual nature of what is termed a licence in this context which gives rise to the certainty, which is the stimulus for the investment. Conversely, an authorisation is closer to a bare licence, to my mind, whereby someone who satisfies certain requirements is permitted to do something which would otherwise be restricted (such as providing a communications service). One of the main benefits of an authorisation-based scheme is that there is no need to enter into negotiations for a "licence" — as long as one complies with the then-current requirements, one is permitted to operate.
What are your views on this? Do the terms really seem to be the wrong way round, or am I missing something more fundamental?
I don't think you are missing anything important. Terminology in the field is imprecise. I think the significant change in the EU has been from regims requiring prior authorisation (licensing) to notification. The latter simply requires telling the appropriate authorities what you are going to do - have done.You might draw links with changes in data protection law.
ReplyDeleteExamples I tend to use are driving licences, where you have to pass a test to demonstrate that you are reasonably safe to be allowed to drive a car and (at least for the UK) a TV licence which gives permission to receive TV signale. Fortunately (at least for me) there is no requirement that you show you know how to use a TV remote control. The only criterion is the ability to pay for the licence.
That's helpful — thank you, Ian.
ReplyDeleteIn terms of your point about data protection law, perhaps, under the proposed regulation, data protection law takes a slightly more risk-averse view, requiring that controllers seek prior approval for activities where the outcome of the (compulsory) risk assessment activity is a determination of high risk — the general requirement of registration appears to have been removed (depending on how Regulation 34(1) is interpreted), but rather than encompass high risk activities with more onerous obligations (akin to the increasing coverage of General Conditions as activities move closer to public voice provision), the Regulation forces controllers to obtain approval from the regulator, which seems to me to be a perfect recipe for slowing down innovation in Europe, and discouraging "privacy by design" in favour of repeating previously-approved mechanisms for handling risk.
Prior approval did, of course , feature in Directive 95/46. It just so happened it has never been applied in the UK!
DeleteI think there are difficult issues and take your basic point. As you will know, I'm very sceptical about the whole concept of the draft Regulation. If we take an example such as the ongoing Google privacy policy issue, I can see benefit in requiring prior approval because the topic is so big and affects so many people.