Duhaime's Law Dictionary


License Definition:

A special permission to do something on, or with, somebody else’s property which, were it not for the license, could be legally prevented or give rise to legal action in tort or trespass.

Related Terms: Licensee, Licensor, Lease

Also spelled licence.

A ticket to a sporting event is the classic example of a license.

In the 1991 case of Edwards v O'Connor, the New Zealand court wrote:

"A license is simply an authority or permission to do what is otherwise wrongful or illegal and in ordinary usage it extends to the document certifying or recording that the appropriate permission has been given by the competent authority."

In Halsbury's Laws of England, the authors wrote:

"A license is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession of them. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the owner's possession and control, the agreement operates as a license.

"A ... license does not create any estate or interest in the property to which it relates. It only makes an act lawful which otherwise would be unlawful.

"A purely personal license is not assignable.

"A gratuitous license is revocable by notice at any time."

A common example is allowing a person to walk across your lawn which, if it were not for the license, would constitute trespass.

As Justice Greene of the House of Lords wrote in Millenium Productions v Winter Garden:

”A license created by contract ... creates a contractual right to do certain things which otherwise would be a trespass.

Access to a shopping mall is on the basis of an implied license and a stay in a hotel is a contractual license.

In Pollo v Taylor, Justice Moore of the Alberta CourT of Queen's Bench wrote:

"A licence with respect to real property, is the authority to do an act with respect to the land which would otherwise constitute a trespass. A licence does not pass an interest in the property. Rather it is only a personal privilege with respect to the land. In deciding whether a licence has been created, the decisive factor is the parties intention. The question of whether the parties intended to create a licence is a question of fact. Where there is no formal document to evidence this intention, the precise circumstances and conduct of the parties must be examined to decide whether a licence was intended."

Licenses are revocable at will (unless set out otherwise in a contract) and, as such, differs from an easement (the latter conveying a legal interest in the land) or a tenancy (which implies exclusive possession).

Intellectual property is often licensed which allows the owner to retain ownership and control but collect profit from the use of the intellectual property by another. In that context, in Eli Lilly & Co. v. Novopharm Ltd., Canada's Supreme Court used these words:

"A licence, even though exclusive, does not give the licensee all the rights of the patentee. A licence does not set up rights as between the licensee and the public, but only permits him to do acts that he would otherwise be prohibited from doing. He obtains merely a right of user. But a licence is a grant of a right and does not merely confer upon the licensee a mere interest in equity. A licence is the transfer of a beneficial interest to a limited extent, whereby the transferee acquires an equitable right in the patent. A licence prevents that from being unlawful which, but for the licence, would be unlawful; it is a consent by an owner of a right that another person should commit an act which, but for that licence, would be an infringement of the right of the person who gives the licence. A licence gives no more than the right to do the thing actually licensed to be done."

Licenses which are not based on a contract and which are fully revocable are called "simple" or "bare" licenses.

The state through the apparatus of government will often prohibit certain activities save and unless a person has obtained a license from the government. Examples are numerous and include a marriage license, a driver's license and a business license.

Often distinguished from a lease as commented upon in Johnson v British Canadian Insurance Co.:

"The distinction between a lease and a license to use ... is that under a lease, the lessee's right to possession is exclusive until the expiration of the term agreed upon; while under a license the licensee has no exclusive possession and his right both to possession and the use may be revoked at any time by the licensor...."

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