Thursday, February 04, 2010

Secondary Liability v. Authorization - Terminology Matters

There will likely be another round of confusing use of terminology involving "secondary liability" and "authorization" following the landmark iiNet decision of February 4, 2010 decision in Oz.

In 2005, I was asked to co-author an amicus brief on behalf of Sharman in the US Supreme Court Grokster case. In that brief, we stated:
While the legal systems of many countries are capable of dealing with the issue of secondary liability in copyright law, there is no consistent pattern in terms of doctrine or even result as to how this is done. The word “authorize” is not used in international law in any sense relevant to the IRO’s brief or to the issues at hand, particularly regarding secondary infringement. Moreover, as will be seen below, the word “authorize” is used in one sense in the United States, in another very different sense in the international treaties and the EU, and in yet a third very different sense in the Commonwealth countries (wherein the term has yielded conflicting results at the highest judicial level).
The brief looked at the state of the law in early 2005 on "secondary liability" and "authorization" in the USA, UK, Canada and Australia. It is useful in clarifying the difference in the concepts and terminology.

I'm looking forward to reading in detail exactly what Judge Cowdroy has to contribute to our understanding of "authorization." There have been some significant divergences in the past between the Canadian and Australian approach on this issue. Let's see where things stand now.

BTW, another aspect of terminology that can sometimes be confusing in this context of comparative terminology is that of "secondary infringement." In Canada, this means the liability set forth in s. 27(2) of the Act that deals with such matters as sale, distribution, and importation. This is the section that figured prominently in the Supreme Court's Kraft decision on parallel imports (in which I was involved) and the SCC's CCH decision, in which the Court famously held in the context of the unsuccessful claim against the Great Library for selling copies of the publishers' works that "Absent primary infringement, there can be no secondary infringement."


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