Imagine you are Olivia Rodrigo. This may be harder for some of us than others, but bear with me. You have just released your new single Brutal. Your new song has been called brilliant and one of the best songs of the year by critics. But then the phone rings with the bad news: your song contains a riff that is very similar to the famous guitar riff in Elvis Costello’s Pump It Up and you are being sued for copyright infringement.[1] Rats! As a responsible creator, you try to avoid copying material from others. You even have people in your record company who check your songs prior to release to avoid incidents like this. But alas, sometimes accidents still happen.
In truth, I do not know if the similarities between Brutal and Pump it Up were intentional or merely accidental. And, luckily for Rodrigo, Elvis Costello has spoken in defence of Rodrigo, saying that: ‘This is fine by me…it’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy. That’s what I did’.[2] But other IP owners are frequently less forgiving.
What I do know is that accidental infringement of IP rights is an all too familiar story. In the Information Age, where increasing amounts of material is protected by IP rights, it has become increasingly easy to infringe those rights inadvertently. Take for example, the publisher Palgrave Macmillan. Open one of Palgrave’s recently published books and within the first pages you may find the following statement: ‘While every care has been taken to trace and acknowledge copyright, the publishers tender their apologies for any accidental infringement where copyright has proved untraceable.’[3] In theory, the publishers should always obtain permission before printing copyrighted material, but in practice this is difficult. Frequently Palgrave wishes to use some expressive material, but it is not clear who owns the rights or even if the work is protected by copyright at all. In these cases, the editors take ‘every care’ to get permission and avoid infringement but still sometimes accidents happen and they mistakenly print copyrighted material without authorisation. When such accidents occur, Palgrave is liable to pay damages to the intellectual property owner, and so they offer a boilerplate apology up front.
In IP Accidents: Negligence Liability in Intellectual Property (CUP 2022), I argue that we need to rethink how we deal with accidental infringement of IP rights. Currently, almost all countries hold individuals strictly liable for accidental infringement of patents and copyrights. That’s a far cry from how accidents are handled in other areas of law. If I drive into you in my car, whether I will be held liable depends on whether I was negligent or not. We accept that accidents happen in all areas of life and, as long as people are not careless, we go about our lives without litigation. IP Accidents argues that we ought to do the same when it comes to IP rights. It is neither efficient nor fair to hold users legally responsible for accidental infringements of copyrights and patents when they have carefully tried to avoid such accidents. When publishers like Palgrave, or musicians like Rodrigo, take ‘every care’ they can in the circumstances to prevent infringement, they should be absolved of liability for any accidents which nevertheless occur.
To read the entire book, see here.
[1] Mark Savage, ‘Elvis Costello defends Olivia Rodrigo over Brutal plagiarism claim’, BBC News (29 June 2021) https://www.bbc.co.uk/news/entertainment-arts-57650176 accessed 11 February 2022.
[2] ibid.
[3] See for example Ralph Hall, Applied Social Research: Planning, Designing and Conducting Real- World Research (Macmillan Education 2008) iv.
Leave a Reply