In a recent judgment dated 22 January 2015, the Court of Justice of the European Union ("CJEU") ruled that the competent court for breach of copyright by a German company posting pictures of an Austrian professional is the jurisdiction where the pictures are made available, i.e. the Austrian jurisdiction.

According to the CJEU, the conflict-of-law rule in international private law must be interpreted in such a way. This conflict-of-law rule allows the applicant, in matters relating to tort, delict or quasi-delict, to bring its actions before the courts of the jurisdiction “where the harmful event occurred or where there is a risk that it might occur”. Such jurisdiction may be the place where the damage occurred or the place where the event causing the injury occurred (in this case Germany, where the pictures were posted on the internet).

In the above-mentioned case, it has been decided that the damage could result from the availability of the pictures in the member state of the seized court. In this regard, the CJUE favours the theory of accessibility and rejects the argument of the "target audience". The latter argument was raised by the defendant. It was argued that if the website is directed to an audience of a certain country, the judge in that country must have jurisdiction. In this case, the defendant pointed out that the top-level domain name was ".de", meaning that the damage occurred in Germany, and the action should have been brought before German courts.

This judgment highlights the need to consider the issues of European international private law in digital copyright, including the question of applicable law, which remains unresolved and still raises complex issues.

Indeed, this law may not correspond to the law of the place where the court is sitting (lex fori) but rather to the law of the country for which the protection is requested, according to the conflict-of-law rule. Yet, regarding the right of the representation of a protected work and the right to make it available to the public on the internet, the law of the country for which protection is sought can match the law applicable in any country in which users can access the work.

In terms of digital copyright, Luxembourg courts are fortunately accustomed to relying on the judgments of the CJEU in deciding substantive issues. A judgment of the commercial section of the Luxembourg District Court dated 21 March 2014 (660/14, no. 153.803), for instance, applied the judgment of the CJEU of 13 February 2014 (C-466/12, Svensson) which ruled on compliance with copyright law, under certain conditions, of "hyperlinks" (redirection of internet users to another website containing protected works). 

Therefore, the CJEU's interpretation of the European texts and in particular the 2001/49/CE Directive (which Member States cannot derogate from, according to paragraph 37 of the judgment C-466/12) addresses the problems of international private law referred to above, at least within the context of trans-European disputes. Regardless of the law designated, it is therefore very likely that the CJEU's interpretation will prevail.

Moreover, such interpretation continues to evolve, as illustrated in the following examples:

  • on 21 October 2014, the CJEU (C-348/13, 13 BestWater International GmbH contre Michael Mebes et Stefan Potsch), issued a decision regarding the technique of "framing";
  • on 5 June 2014, the CJEU (C 360/13, Public Relations Consultants Association Ltd v. Newspaper Licensing Agency Ltd and Others) ruled on cashed copies and on-screen copies; and
  • on 5 March 2015, the CJEU (C-479/13, European Commission against French Republic) ruled on the exemption of private copying on the internet.