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This fall the Supreme Court of Canada will hear the case of Transportaction Lease Systems v. Yeung. The issue for the Court involves the vicarious liability of property owners. Section 86 of B.C.'s Motor Vehicle Act makes a vehicle owner vicariously liable for the negligence of persons driving the vehicle with the owner's consent. According to the B.C. Court of Appeal, that includes a lessor.

I'm very interested in that case because I suggest that vicarious ownership obligations can extend to intellectual property owners as well. In an article called "Biotrespass," which was just published in the Bulletin of Science, Technology and Society, I argue that a patent licensor ought to be liable for the actions of its licensees. A landlord can be liable for the acts of her tenant in a real property context, and a lessor can be liable for acts of lessee in a personal property context. Though liability in the Yeung case turned on statutory interpretation,  in principle there's no reason to treat intellectual property owners any differently than real or personal property owners. Because real, personal and intellectual property rights provide owners with control over the property, often bolstered by contracts, the threat of liability creates an incentive to exercise that control so as to minimize the risk of harm to others.

It happens that the Supreme Court has a chance consider my argument about intellectual property ownership obligations in the near future. In the case of Hoffman v. Monsanto a group of organic farmers are seeking leave to appeal from judgments of the Saskatchewan Court of Appeal and Court of Queen's Bench denying their application for certification as a class action. They're alleging that Monsanto and Bayer Crop Science are liable for harms caused by genetically modified crops that stray from licensed farmers' fields. Though the claims are complex, the plaintiffs are relying heavily on the notion of intellectual property ownership obligations.

We'll soon see if the Supreme Court chooses to recognize that real, personal and intellectual property rights come with responsibilities, and whether vicarious liability is the appropriate legal tool for implementing this principle, or if there are other grounds on which to impose liability. When my tort and property classes get underway this week, these will be cases to watch.

Comments (1)

	1. 29-09-2007 19:47
	Okay, does this mean that if I borrow someone my car. The person gets into an accident, accidentially kill someone, I might be held liabile as well because it is my property.     A case where the person you borrow your car to has their driving requirements and where the person does not have their requirements will be decided differently (my personal opinion). The former case might be seen as an unfortunate incident, while the latter will be seen as negligent. Guest

O.B

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