Authorisation as accessorial liability: The overlooked role of knowledge

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Abstract

The concept of authorisation of an infringement of intellectual property rights has not been uniformly interpreted or applied in Australia and the United Kingdom. This article argues that authorisation is a form of accessorial liability. As such, it creates liability for wrongdoing that requires proof both of acts of involvement in the principal wrongdoer's infringement, and that such involvement is engaged in with a requisite mental element. The law of authorisation has been troubled precisely because the concept does not expressly refer either to the types of involvement that it encompasses, nor the mental state that is required. Without adequate consideration of these two factors, and particularly an express focus on the level of knowledge and the content of such knowledge that is in many contexts critical, the law will continue to be opaque and make the application of "authorisation" difficult to predict.
Original languageEnglish
Pages (from-to)146-166
Number of pages21
JournalAustralian Intellectual Property Journal
Volume24
Issue number3
Publication statusPublished - 2014

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