Advocate General Niilo Jääskinen ("AG") on 13 June 2013 issued a non-binding opinion in Pinckney v Mediatech on questions relating to jurisdiction in online cross-border copyright infringement cases.
The French Supreme Court had asked the CJEU to determine whether the courts of each Member State from which the contents of a website were accessible, had jurisdiction to rule on alleged copyright infringement claims pursuant to Article 5(3) Brussels I Regulation.
The AG dismissed the "accessibility" criterion in favour of a "focus and target" approach already adopted by the CJEU in trade mark and database rights infringement cases.
- Copyright owners can bring action for online copyright infringement in the courts of Member States in which a defendant is domiciled, pursuant to Article 2 Regulation 44/2001 ("Brussels I Regulation").
- Copyright owners considering starting proceedings in the courts of Member States in which defendants are not domiciled may need to ask themselves whether the website's activity has been intentionally targeted to those Member States, even if website content is accessible from there.
- Copyright owners can indeed bring actions against infringers pursuant to Article 5(3) Brussels I Regulation in the courts of the place where the harmful event occurred, for damage suffered in that specific territory.
- The "places where the harmful event occurred" are (i) the place where the damage occurred; and (ii) the place of the event giving rise to it.
- The "place giving rise to the damage" in online distribution rights infringement cases is the place where the decision to commercialise the products online is made. For online communication rights infringement cases, it is the place where the decision to upload those contents is made.
- The "places where the damage occurs" for both online distribution and communication rights infringement cases are the places to which the activity of the relevant website is targeted.
- National courts are reminded that the referral of questions which bear no relation with the underlying dispute will be dismissed.
Mr Pinckney, a French resident, claimed to be the author of twelve songs, which were made into a vinyl disk in the 1970s. Mr Pinckney brought a claim against Austrian company KDG Mediatech AG ("Mediatech"), which he claimed had copied without his authorisation his songs onto a CD. Copies of the CDs were sold by UK companies via websites accessible by Mr Pinckney in France. While the French First Instance Court considered that it had jurisdiction to rule on the matter, this was overturned by the French Court of Appeal on the grounds that the country of residence of the Defendant was Austria and the damage had occurred outside France. Mr Pinckney appealed the decision as he considered that this ruling breached the provisions of Article 5(3) Brussels I Regulation which provides that:
"A person domiciled in a Member State may, in another Member State, be sued … in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred or may occur".
The French Supreme Court referred two questions to the CJEU relating to the application of this article in online copyright infringement cases. Firstly, the French Supreme Court asked whether actions could be brought in the courts of any Member State in which the online content had been made accessible or whether the content would need to be "directed" to the internet users of that Member State. Secondly, the French Court asked whether the answer would be different if the infringement resulted from the online sale of a "carrier medium" as opposed to the placing of copyright content online.
Admissibility of the questions referred
The AG criticised the referring court for not having particularised the alleged acts of infringement at issue in the dispute and for having referred to "copyright" broadly without distinguishing between the rights of reproduction (making the CDs), communication (uploading content online) and distribution (offering the CDs online). The AG noted that the competent jurisdiction would depend on which of these rights were invoked.
The AG considered that the questions referred were inadmissible because of (i) the lack of factual detail provided by the French Supreme Court; and (ii) the lack of relevance of the questions referred on the outcome of the dispute. Indeed, the questions referred were concerned with the provision a CD and online content through a website even though Mediatech, the Defendant in the case, had only been responsible for making the CDs. Accordingly, the only right which may have been breached was the reproduction right, to which the questions referred did not relate. On this basis, the AG concluded that the questions referred by the French Supreme Court were inadmissible. Nevertheless, the AG provided guidance on the application of Article 5(3) Brussels I Regulation in online infringement cases, should the CJEU consider responding to the questions.
"Place where the harmful event occurred" – Article 5(3) Brussels I Regulation
The AG noted that it was settled case law that the "place where the harmful event occurred" could be: (i) the place where the damage occurred; and (ii) the place of the event giving rise to it.
- Reproduction rights
For infringement of reproduction rights, the AG followed CJEU case law and noted that the place giving rise to the damage (i.e. the place where the act of reproduction takes place) was identical to the place where the damage occurred, because damage is suffered by virtue of, and is inherently linked to the act of reproduction. Applying this to the facts in Pinckney, the AG considered that the courts of Austria, place where the CDs had been made, and the UK, place where the songs were copied on a host server, would have jurisdiction.
- Distribution and communication rights
For infringement of distribution and/or communication rights, the AG noted that the place where the damage occurs may be different from the place giving rise to it.
Place giving rise to the damage: The AG followed CJEU case law relating to trade marks by stating that the place giving rise to the damage was the place of establishment of the alleged infringers. The AG noted that in the Pinckney case the place of establishment of infringers would be the place where the upload (communication) of the music and the place where the online offer of CDs (distribution) were decided.
Place where the damage occurred: The AG followed the principles developed by the CJEU in L'Oreal on trade mark rights and in Football Dataco on database rights. The AG adopted the "targeting" and "focus" approach, meaning that courts of Member States to which a website's activity is intentionally targeted are competent, although their jurisdiction is limited to the determination of damage suffered in that specific territory.
The AG in turn rejected criteria based on the "accessibility" of the online content or on the place where the protection was sought as he considered that these would encourage forum shopping. In addition, the AG rejected a criterion based on the "claimant's centre of interests", which the CJEU had adopted in edate Advertising (a case on infringement of personality rights) since damage stemming from copyright infringement did not necessarily relate to the place of the copyright owner's centre of interests.