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

Intellectual Property Journal, Vol. 23, p. 147, 2011

11 Pages Posted: 5 Jul 2011

See all articles by David Vaver

David Vaver

York University - Osgoode Hall Law School

Date Written: July 4, 2011

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.

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

Suggested Citation

Vaver, David, Consent or No Consent: The Burden of Proof in Intellectual Property Infringement Suits (July 4, 2011). Intellectual Property Journal, Vol. 23, p. 147, 2011. Available at SSRN: https://ssrn.com/abstract=1878681

David Vaver (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Register to save articles to
your library

Register

Paper statistics

Downloads
185
rank
153,835
Abstract Views
1,490
PlumX Metrics