Secondary Liability for Intellectual Property Law Infringement in the International Arena: Framing the Dialogue

Abstract

International agreements do not generally address issues of secondary liability for infringement of intellectual property law rights, and there is little international consensus on this topic, even among the major industrialized nations. National laws tend to vary considerably regarding the scope and extent of secondary liability, with U.S. tending to be more liberal with the imposition of such liability than most of its major trading partners. This lack of uniformity in secondary liability rules in the international arena makes the evaluation of infringement liability in that setting uncertain and makes it difficult for business to effectively plan international intellectual property strategies. Given the global nature of modern business activity, the time has come to open serious dialogue on the advisability of creating uniform international standards for secondary liability for infringement of intellectual property rights. Unfortunately, instead of focusing on the full panoply of situations in which secondary liability for intellectual property can occur, and the range of considerations that might affect imposition of such liability, such as notions of respondeat superior, intent, authorization, and control, the current debate has settled on the imposition of secondary liability in the peer-to-peer file-swapping arena. This narrow focus may well make it more difficult, if not impossible, to reach consensus on this important issue. By stepping back and reframing the issue in more general terms of secondary liability outside the digital environment, we can more easily contemplate important questions such as the pros and cons of imposing such liability, the situations in which such liability makes sense, and the manner in which we balance the rights of the public and goals of free trade and markets against the need to encourage innovation by protecting the rights of the innovators.