Unfair Competition Law: The Protection of Intellectual and Industrial Creativity

By Anselm Kamperman Sanders | Go to book overview

6
Cognizance in Intellectual Property Law

INTRODUCTION

In this Chapter English copyright cases that involve the use of constructive knowledge criteria are discussed. The reason is that English law involving the constructive trust is marred by the need to establish fraud. This Chapter serves to demonstrate that principles of constructive knowledge are applied in intellectual property law without the need to establish fraud. As such it strengthens the case for the use of constructive knowledge criteria without fraud. It also serves to bridge the gap that otherwise exists between trust law and intellectual property law.


I
CONSTRUCTIVE KNOWLEDGE AND COPYRIGHT

The defendant's state of mind and his knowledge, be it actual or constructive, are critical not only in constructive trust cases but also in copyright cases. Since copyright bears closer resemblance to unfair competition law than the area of constructive trust, it is important to see how the defendant's state of mind is assessed. It is also useful because, unlike the constructive trust, copyright cases are not marred by fraud.

The 1988 Copyright Act contains provisions that make it an infringement commercially to exploit copies which the defendant knows or has reason to believe to be infringing copies.1 These provisions do not deal with people who themselves carry out direct infringements of copyright or authorize others to do so, but with those who commercially deal in infringing copies. Secondary infringement of copyright materials covers importation,2 possessing, and exhibiting in public in the course of business, selling, letting for hire, offering or exposing for sale or hire, or distribution in the course of business or otherwise to such an extent that it prejudicially affects the owner of the copyright.3 It also covers the provision of means for making infringing copies, the transmission of copyright materials without a licence,4 and the provision of apparatus for playing or showing a work in public.5 These

____________________
1
Ss. 22, 23, 24, and 26 all cover forms of secondary infringement of copyright and require knowledge.
2
Copyright Act 1988, s. 22.

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