Michael John Long is an LLM candidate advancing to the PhD at Osgoode Hall Law School
In their recent article, Copyright as Tort, authors Avihay Dorfman and Assaf Jacob argue towards a more comprehensive tort based analysis for copyright law than has been offered so far. The authors argue very matter of factly ‘that copyright law is tort law, too’ and in the end believe that copyright protection should ultimately include a selection among differing regimes of tort liability.
In the beginning the authors consider the relationship between tangible property and torts, establishing that torts are just as important to property as rights. In acknowledging, say, a duty not to trespass, or a duty against carelessly damaging others' property, these tort duties render the abstract idea of non interference more practical and concretize the idea of ownership.
Having established the importance of tort law in this discussion the authors outline the types of tort regimes, noting that the trespass or strict liability regime (liability is built upon intentional conduct and fault is inessential) has been the most consistently applied in protecting property rights. This reasoning, argue the authors, has been extended to intellectual property in general and copyright more specifically. The courts have stated that those who commit copyright infringement engage in tort doing of the strict liability sort, and ‘any infringer, whether innocent or intentional, is liable.’ In other words, the intention to infringe is not essential in copyright law, and so, the defence of an absence of knowledge or intention to infringe has been denied; although concern of the harshness of the strict liability principle has at least been identified.
While the courts have identified the harshness of the strict liability regime the authors contend that ‘copyright law should not be confined to strict liability, but may also incorporate... absolute and/or negligence liability regime[s].’ The authors make this contention from a ‘market’ perspective, noting that so long as a market exists, the law will ‘null all incentives of bypassing it.’ In other words, when the market is real and inexpensive, it is the first best option, and will reflect the true value of transactions that occur. However, scenarios exist in which the market is not a real option; perhaps from being too expensive, or internal market failure, or imposed externalities. In such scenarios, use of the market may ‘lead to suboptimal level of use of works by society,’ or may impose restrictions that are too severe on an individual’s ability and freedom to pursue her affairs. The authors write that this is all too common in many areas of copyright law and thus suggest an alternative regime of ‘accidental liability.’
The accident regime, which consists of absolute and negligence liability, assumes that the market is not a viable option, for whatever reasons, while also aiming to promote productive activities. Imagine in this method the infliction of damage to others property - negligence law would require action that was taken in a reasonable manner, while absolute law would require the entire risk of the materialized accident regardless of reasonable care. In order to decide which approach to accident law should be pursued in certain instances there are several considerations, including the demands for justice.
An interesting element of the authors contention is that in copyright law, the accident regime would be relatively easy to navigate as ‘the paradigm of conflicting uses is different than that of real property.’ In this is the idea that accidental use of someone’s work does not conflict with other uses and so the actual copyright owner has not been hindered from use. Here we can imagine the accidental incorporation of a song into a film; the song will still be protected, others will not be able to use the song, and the accidental infringer will not be able to use the song for a different purpose. According to the authors' approach then, the accidental use could be permitted upon absolute liability (which would result from the paying of damages) or negligence liability (which would result from proving the song was used reasonably).
The authors believe that the questions which surround the selection of desired protection for creative works should be pursued from a tort law perspective, largely because, and as they have attempted to show, the normative structure of copyright law is also that of tort law.
Jacob, Assaf and Dorfman, Avihay, Copyright as Tort (May, 03 2010), Theoretical Inquiries in Law, 2010, is available here.