Consent or No Consent: The Burden of Proof in Intellectual Property Infringement Suits

Abstract:     
A Canadian federal court recently claimed in a copyright infringement case that consent is a matter of defence for defendants to prove. This paper takes issue with that assertion. Lack of consent is an ingredient of infringement and the legal burden must therefore be on the plaintiff to plead and prove it, although the secondary burden of leading evidence, especially where implied consent is alleged, may shift back and forth during a trial. The Note examines case law from the UK, Hong Kong and Australia concludes that similar principles apply to all intellectual property infringement cases.

Number of Pages in PDF File: 11

Keywords: copyright infringement, consent as defence, consent and infringement of copyright, burden of consent, burden of consent in copyright infringement, intellectual property consent, intellectual property in Hong Kong

JEL Classification: O34

Accepted Paper Series