The Court of Justice of the European Union (the "CJEU") has handed down its preliminary ruling on the question of jurisdiction in the context of online sales of copyright-infringing goods.  The case does not reflect a significant change in the law but clarifies what can be a complex topic, particularly in relation to online sales.  In short, the CJEU confirmed that where infringing copies are offered online, the court of a Member State have jurisdiction if:

  • the website supplying them is accessible from that Member State, and
  • the work is protected by copyright in that Member State.

However their competence is limited to damage suffered in that Member State.

The question referred to the CJEU by the French courts concerned the interpretation of Article 5(3) of the Brussels Regulation (Regulation 44/2001/EC), which states that a person may be sued in another Member State for certain wrongs in the courts of the country "where the harmful event occurred or may occur".  The crucial issue was whether a harmful event could be said to have occurred in France although infringement was alleged to have occurred in the UK.

The claimant in the case was a musician living in France, who claimed to be the author, composer and performer of a number of songs.  He sued Mediatech, an Austrian company, for reproducing his songs without his authority onto a CD produced in Austria.  The CD had subsequently been marketed by UK-based companies through various internet sites which could be accessed at the claimant’s home in France.  Mediatech challenged the claimant's decision to bring the action in the French courts, arguing that the only courts with jurisdiction were the courts of the defendant’s domicile (in this case Austria) or those of the place where the damage was caused (in this case the UK, where the alleged infringement took place). 

In this case, the CJEU's ruling meant that the French court did have jurisdiction, but only in respect of harm the claimant had suffered in France (namely losses arising from online sales in France of the infringing CD).

Under the general rule, the courts of the defendant's domicile have jurisdiction. However, applying Pinckney, the courts in the place or places where the harmful event occurred or may occur will also have jurisdiction: if a website targets the public outside the UK, and so infringement occurs outside the UK, but the rightsholder suffers harm in the UK, the UK courts may hear the claim and determine the damage caused in the UK. This inevitably opens the door to forum shopping: in addition to considering which country a website targets, one needs to consider the jurisdiction of domicile of rightsholders as any infringement could lead to damage where the rightsholder is located and therefore jurisdiction in that country.

The ruling is available here.