On October 3, 2013 the ECJ ruled that court proceedings may be brought in any jurisdiction where the alleged copyright infringing material is accessible online.
This case is about Mr. Pinckney, domiciled in France, who held the copyright to twelve musical pieces, and Mediatech, an Austrian company, who allegedly reproduced without authorization those works onto a material support. The media containing those reproduced works by Mediatech was marketed online by two companies based in the United Kingdom.
The ECJ, in its judgment, referred to a case from the French Court of Cassation. The issue in this case was whether a court of a Member State has jurisdiction in the event of an alleged copyright infringement (committed by means of online sale of a material carrier medium which reproduces the copyright protected content) if the content placed online is or has been accessible in the territory of the Member State, or does that content have to be directed to the public located in that territory, or must some other clear connecting factor be present?
The ECJ, in Mr. Pinckney’s case, started by noting that the jurisdiction between EU Member states is regulated by the Council Regulation (EC) No 22/2001 of 22 December on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”) and that Article 5(3) of this Regulation grants special jurisdiction to courts of Member States in which a harmful event occurred or may occur. The ECJ further specified that this Article should be interpreted as covering both the place where the damage occurred and the place of the event giving rise to it.
Concerning copyright infringement, the ECJ considered that since copyright is created automatically, it can be infringed in all Member States. Furthermore, the ECJ felt that the likelihood of the harmful event occurring arises from the possibility of obtaining a reproduction of the copyrighted work from a website that is accessible from the Member State of the court seized. This implies that the harm could occur in all Member States in which the website content is made accessible. Therefore, the ECJ concluded that it was not necessary for the website activity concerned to target consumers in the Member State of the court seized.
However, the ECJ did limit the scope of competency of the Member State courts by stating that, since copyright protection was territorial, the court seized only had jurisdiction to determine damage caused within that Member State.
Essentially, this ruling will make it easier for copyright owners to bring infringement proceedings not only in the Member State in which the copyright is registered but also in each Member State in which the infringing works or goods may have been accessible online. However, copyright owners will still need to bring multiple actions in multiple jurisdictions to obtain redress in all territories concerned.
This decision is also a surprising departure from previous case law on online infringement of other intellectual property rights whereby jurisdiction will only be established in the courts of the Member States where the website is targeting its consumers.
Finally, this ruling distinguishes Article 5(3) from Article 15(1) (c), given that the latter, which concerns jurisdiction in relation to consumer contracts, specifically states that activities must be directed to the Member State of the court seized.
The decision can be found on: http://curia.europa.eu