Introduction

Overview

This chapter considers rules imposing accessory, and accessory-like, liability to remedy infringements of intellectual property (IP) rights. We have already considered accessory liability for IP infringements via the application of generic tort accessory principles in Chapter 5. However, persons may also be liable on the basis of specific statutory provisions. This chapter considers such provisions under the following three headings:

(1) Authorisation of infringements. Copyright and design law in the UK and Australia, and patents and trademarks law in Australia, provide that right holders have the rights to do the acts or exploit the rights contained within the relevant IP, and that these rights include the right to ‘authorise’ such use or exploitation [9.2]. Any ‘authorisation’ by a person, A, of a primary infringement by another, primary wrongdoer (PW), without the consent of the right holder therefore itself infringes those rights. The general concept of ‘authorisation’ is therefore central to establishing accessory liability.

(2) Other accessory liability rules. This chapter briefly notes some minor and specifically targeted statutory doctrines that create accessory liability [9.3].

(3) Non-accessorial ‘indirect’ infringements. A number of different, specifically targeted, statutory provisions create precise sources of liability, variously labelled in the legislation and commentary as ‘secondary’, ‘contributory’ or ‘indirect’ infringement. Even though some of these labels suggest accessory liability, for the most part, these provisions do not impose what is conceptually accessory liability (excepting those just noted in (2)), despite having considerable affinity with accessory liability [9.4].

Competing policies in IP accessory law

Accessory liability based on a party's wrongful involvement in another's primary wrong is a narrowly confined basis for liability. The goals of deterring primary infringement and vindicating rights face serious challenges in IP law if third parties are only liable on the basis of such narrowly confined liability rules. In part, these challenges come from technological innovations, particularly on the internet, that enable widespread and repeated infringements of rights by numerous individual infringers. Examples include mass copying of copyrighted materials or worldwide marketing by persons selling goods that infringe trademarks. It may be practically impossible to deter such infringements or remedy their consequences by pursuing individual primary infringers, and this has the potential to significantly diminish the value of IP proprietary interests.