Document Type : Original Article
Authors
1
PhD Candidate, Faculty of Law, Shahid Beheshti University, Tehran, Iran Corresponding Author Email: e.jafarkhani@sbu.ac.ir
2
Professor of Law, Faculty of Law, Shahid Beheshti University, Tehran, IRAN.
Abstract
The advancement of industry and technology has been an inevitable and often desirable aspect of human history, enhancing human welfare and power, and becoming a central goal for many. Government and corporate policies have also focused on expanding technology. However, these advancements can create opportunities for misuse, endangering individuals’ rights, including copyright. Modern technologies have facilitated the creation of copyrighted works but have also made their infringement easier. Opportunists exploit technology to enable widespread copyright infringement without directly violating it, rendering legal protections for copyright ineffective, as rights holders often cannot identify infringements or pursue claims against numerous infringers. Since halting technological progress is neither feasible nor desirable, a new approach to copyright law is needed to ensure its enforcement by establishing clear liabilities for those facilitating infringement. In this article, our goal is to examine in detail one of the types of indirect liability that has been identified for facilitators of copyright infringement, through a comparative study of the judicial practice of the United States of America, and also to examine the possibility of identifying this type of liability in the Iranian legal system. The United States was chosen for this comparative study due to its significant industrial and technological advancements, its status as a hub for major investments, and its capitalist system with strong copyright protections. The U.S federal courts, relying on common law without needing new legislation, have recognized three types of indirect liability in copyright infringement and clarified their dimensions in various rulings. In this article, key federal courts decisions on contributory infringement are studied aiming to analyze its aspects based on external conditions of each aforementioned claims through primary sources, elucidating U.S. judicial precedent for readers. Additionally, inspired by the U.S. judges’ reliance on common law, this article references Islamic (Imami) jurisprudential principles and Iranian civil liability doctrines that accept indirect liability in specific cases, aiming to explore the potential for recognizing such liability in Iran’s literary and artistic property law through unity criterion. In the U.S. copyright system, three types of indirect liability are recognized: vicarious liability, liability for inducing infringement, and contributory infringement, each with distinct bases but sharing the common feature of holding someone other than the direct infringer liable. This article focuses solely on contributory infringement, outlining its conditions and characteristics. The key judicial definition of contributory infringement – which the courts have identified all the elements of this liability based on that definition– is: “One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a "contributory" infringer.” According to this definition, there must be two basic elements to identify liability: (1) knowledge of the infringement and (2) material contribution to it. Regarding the element of knowledge, it can be stated that explicit and actual knowledge of specific cases of infringement will certainly be recognized as the element of knowledge in imposing this type of liability, and also if the external conditions of the dispute are such that any reasonable person can achieve a typical knowledge of the infringement cases, this typical and conventional knowledge will also be sufficient to impose liability. Regarding the element of effective participation and cooperation, it should also be noted that courts have usually not addressed the causal relationship in examining this element and have considered a form of extensive facilitation of the violation as the realization of this element. In Iranian law, rooted in Imami jurisprudence in many aspects of civil liability, the principle is personal liability, and one cannot generally be held responsible for another’s damage, as affirmed by rules like the "Vezr Rule". However, in both jurisprudence and statutory law there are cases where the sacred shariah or legislator has recognized indirect liability based on wisdom or expediency, such as the liability of the Aqila, public treasury, guardians, or employers, which in these cases have acted contrary to the principle of personal liability. What is of great importance in this text is that in contributory infringement liability, there is a form of participation accompanied by knowledge of the indirect infringer, and thus, it may be simpler to recognize this type of liability through the principles of direct causation and contributory causation. Given that there is no definitive religious or legal prohibition against recognizing indirect liability in Iran’s legal system, and considering that in certain cases, both the Sharia and the legislature have deviated from this principle, in the copyright legal system, if the goal is to truly protect copyright, this type of liability can be recognized: Because the absence of such liability would effectively render copyright protection meaningless. To delineate the scope of this liability, one can undoubtedly draw on the principles underlying other forms of indirect liability, as well as the concepts of direct causation (Mubasharat) and contributory causation (Tasbib), while also leveraging U.S. judicial precedent, to define the extent of this liability with specific limitations.
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