Chapter 3: Secondary Liability for Intellectual Property Law Infringement in the International Arena: Framing the Dialogue
Lynda J. Oswald* Secondary liability is liability that is imposed upon a defendant who did not directly commit the wrongdoing at issue, but who the law nonetheless holds responsible for the injuries caused (Bartholomew and Tehranian, 2006, p. 1366). Imposition of secondary liability has been justiﬁed both on eﬃciency grounds (that is, as a mechanism to shift costs to those in the best position to prevent future harm), and on moral grounds (that is, those who intend to bring about a harm should be held liable even if another party was the direct cause of the harm incurred by the plaintiﬀ) (Bartholomew and Tehranian, 2006, p. 1366). International treaties currently generally do not address issues of secondary liability for infringement of intellectual property rights, and international consensus on this topic is limited at best, even among the major industrialized nations. Legal protection of intellectual property rights is inherently territorial in reach (Holbrook, 2004, p. 758), absurd as that might seem in a world of increasing intertwined global activity. Absent a governing international agreement imposing speciﬁc obligations and fostering global harmonization, each nation is free to create its own rules and levels of legal protection regarding intellectual property rights, and innovators must seek protection of their copyrights, patents, trademarks or trade secrets within the conﬁnes of the legal regimes of the jurisdictions in which they operate (Thomas, 2005, p. CRS-5). National laws vary considerably regarding the availability and extent of secondary liability, with the United States tending...
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