Courts often remind us that the infringement of intellectual property (IP) rights attracts strict liability. But why this is so receives less than satisfactory explanation. In his thought-provoking monograph, IP Accidents, Dr. Patrick Goold makes a forceful argument that strict liability may have been acceptable in the eighteenth and nineteenth century when infringements were fewer. He posits that given how easily one might infringe the IP rights of others in today's technological milieu, strict liability for IP infringement should be replaced by negligence liability. Goold's normative justifications for why negligence liability should be preferred drawn from economic efficiency are impressive and persuasive. However, the case he makes for the need to replace strict liability and the manner in which negligence liability may be incorporated into the infringement doctrine could have been clearer.

Let us begin with Goold's arguments on strict liability. Goold takes on the oft repeated and simplistic justification that IP rights are property rights, property rights are subject to strict liability and therefore, strict liability is appropriate for IP infringement. He objects to strict liability being an unquestionable consequence of IP as a property right, pointing that even in relation to tangible property liability for negligent damage is recognised, in addition to strict liability (pp. 86–87). As such, he argues that introducing negligence liability for IP infringement need not take away from IP rights being proprietary, nor does it relegate IP exclusively to tort law (pp. 123–25). Goold is right to point this out. However, a more principled argument could have been made by examining the circumstances in which negligence liability for interference with chattels arises and explore if, by analogy, similar basis can be laid for negligence liability for infringement of IP rights. In particular, Goold could have drawn strength from the argument that since non-deliberate acts of interference with chattels attracts only negligence liability (S. Douglas, Liability for Wrongful Interferences with Chattels (Oxford 2011), ch. 8), non-deliberate infringement of IP rights by analogy, should also only attract negligence liability.

This requires an analysis of what it means to act deliberately or non-deliberately in the context of IP infringement. Although it is generally agreed that strict liability arises in cases where no fault needs to be proved (P. Cane, “Mens Rea in Tort Law” (2000) O.J.L.S. 533), its boundary with fault liability is not always clear, given the malleable definition of fault. While intentional acts count towards fault, difficult questions arise when distinguishing intentional acts from deliberate acts. The requirement in copyright infringement that a work alleged to be a copy must be derived from the prior work suggests that copyright infringement requires not a mere objective similarity, but a degree of deliberate act of copying, which may be neither intentional nor involuntary (subconscious copying is addressed below). However, in patent infringement there is no requirement of an allegedly infringing invention to be derived from a patented invention, which indicates a lower degree of deliberateness. A comparative analysis of the deliberateness of action required in IP infringement and chattel torts at a more granular level would have strengthened Goold's argument of introducing negligence liability into IP infringement.

Moving on to Goold's arguments on negligence, Goold does provide convincing normative justifications for negligence liability for IP infringement drawn from economic efficiency (Chapter 4). He begins with the premise that there should be no duty to prevent IP accidents at all costs. In arguing how much care a user should take, he breaks down the costs into preventive costs which are costs associated with exercising reasonable care to prevent accidental infringement; and expected accident costs represented by the probability that the accident will happen. He uses a hypothetical scenario of an untraceable photograph to demonstrate the optimal cost that can be achieved under different liability regimes, with no liability at one end, strict liability at the other, and negligence liability and negligence liability with contributory negligence in between. He concludes with this analysis that negligence liability is preferable because this incentivises both the IP owner and the user to take efficient levels of care. Goold also considers social costs as secondary costs that one must account for. He assesses these together to make a powerful economic argument that simple negligence liability (not coupled with contributory negligence) is the most efficient and cost-effective way forward for IP accidents. He convincingly substantiates these arguments with justifications drawn from equitable distribution of cultural risk, making a case for an effective system that respects each other's boundaries of cultural engagement.

Doctrinally, the title IP Accidents holds the key to the scope of negligence liability he proposes. He uses the term accident to mean cases where injuries arise from the lack of due care, distinguishing cases of intentional infliction of injuries from negligent ones in tort law. He argues that a similar distinction must exist in relation to IP infringement. But he distinguishes between “factual accidents” and “legal accidents”, explaining that the latter occur when a point of law is unclear, such as the scope of a right (say, whether an act amounts to the communication of a copyright work to the public). Goold clarifies that legal accidents are outside the scope of the monograph since the prevention of these accidents would require greater clarity and accessibility of the existing laws. He confines the monograph to factual accidents, by which he means accidents which occur due to imperfect information of the facts of the case (p. 16). In effect, Goold confines the possibility of negligence liability to cases where the liability rests on questions of fact rather than questions of law. He identifies several ways in which factual accidents might occur – a person might know that IP rights exist in a product, but might not know the details (for example, the term of protection of an old photograph); or the IP owner may not be traceable (the problem of orphaned works); or there may be a reasonably held belief that the owner has consented; or the copying may be subconscious. Goold argues that the liability in these cases should only arise if due care was not taken.

Of the instances of factual accidents, subconscious copying is problematic. Goold seems to be arguing that if, for example, a copyright owner of a musical tune can show that the user has taken a substantial part, liability for subconscious copying should only arise if the user did not exercise due care to ensure that she did not subconsciously copy the work. While one may accept that subconscious copying is non-deliberate copying and therefore, only negligence liability should arise, it is not clear how is one to show that one has taken due care not to be subconsciously influenced by a prior work, if access was not at issue. What if the user's tune is so similar to the prior work as to render any coincidence unlikely? If we are to decide whether due care was exercised based on how similar the later work is to the prior work, then this approach is not significantly different from the current approach which also infers subconscious copying based on the extent of similarities. Causation, i.e. the link between the user's lack of reasonable care and the user taking a substantial part of the prior work, seems fragile.

Although one can see why Goold's thesis applies more effectively to factual accidents, infringement often raises mixed questions of fact and law. In certain cases, it is unclear whether it is possible that even if a person has in fact exercised due care, liability may ensue because of a finding of law. For example, say a person is able to demonstrate as a matter of fact that she has exercised due care to ensure that when repairing a patented product, she does not “make” the patented product. But as a matter of law, if a court finds that she did “make” it, is the court to decide the case based on its conclusion on the point of law or the facts? Or say a person demonstrates that she took due care to ensure that the part taken of a prior work is not substantial by avoiding, to the best of her ability, the original part of the prior work. But a court might find as a matter of law that she did take a substantial part. Again, is a court to find infringement based on the point of law or the facts? The limits of many defences such as parody, fair dealing and fair use in the US context are highly contentious questions of law. It is unclear whether Goold's focus on factual accidents means that he expects negligence liability to apply only in cases where questions of law are entirely non-contentious.

Goold does provide some clarity as to how negligence liability could be introduced. He examines whether the rules for setting standards of care can be incorporated (pp. 93–97). One such significant step could be in requiring all IP rights, including copyright, to be registered and marked on the products as appropriate, to publicise the existence of such rights. This would mean that before using any intellectual good, a person will have to inspect the product and conduct searches as required, to meet the standard of care. However, Goold recognises that this may not always be feasible given the diversity of products incorporating IP rights, some of which may not even be products (such as process patents). Also, for copyright the Berne Convention requires that copyright protection not be subject to any formalities, although Goold draws our attention to literature that argues that formalities that are not constitutive, but are meant only for publicity, may not violate the Berne Convention provisions. He suggests instead that we should simply adopt the general negligence standard of reasonable care, which is informed by the facts and circumstances of each case. How this might work in practice, such as in subconscious copying or in determining whether substantial part is taken, is unclear.

Goold goes on to discuss the various stages at which the negligence liability should be introduced, such as licensing, infringement, defences, and remedies (pp. 97–105). The difference between introducing negligence liability into the infringement doctrine and the defences is one of burden of proof, and Goold seems to falter on this point. If IP infringement is to remain truly a negligence-based liability, the primary burden of proof to establish negligence must rest on the person claiming negligence, i.e. the IP owner (usually the claimant). On the other hand, if exercising due care (i.e. the lack of negligence) were to be available as a defence, then the burden of proof would rest on the person claiming that due care was exercised, which is the user (normally the defendant). Goold recognises that in ordinary negligence, the reasonable care and therefore, negligence analysis features within the prima facie case being established (p. 99). This appears to suggest that the burden of proof is on the IP owner to prove a prima facie case by showing that the user's lack of care led to an IP right being infringed. However, he goes on to argue that if the IP owner establishes a prima facie case of infringement (i.e. that the user copied the work or used the patented invention), then a rebuttable presumption in favour of liability would operate, and only if the user introduces evidence that she exercised all reasonable care should the court not hold her liable (p. 100). This appears to suggest that in infringement cases the burden of proof rests entirely on the user to prove that she took all reasonable care, as if it were a defence rather than a component of the tort of infringement itself. A more coherent exposition of the burden of proof would have helped. It appears to make sense to place the burden on the IP owner from an efficiency viewpoint. If the IP owner is the one bearing the burden of proving that reasonable care was not exercised, then the IP owner will be more cautious in ensuring that their valuable creations are registered where possible, and bear the appropriate markings, making their rights discoverable.

In summary, however, Goold's work is a bold effort in addressing an extremely complex area of law, presented in an historical context, enriched by arguments of economic efficiency. Situated at the intersection of IP and private law, Goold's work is remarkable in demonstrating the role of core doctrines of private law in addressing some of the most pressing issues in IP.