In contrast to Advocate General Jääskinen’s opinion, the CJEU considered that the relevant criterion was not whether the activity of the website was “directed to” the Member State of the court seized, but rather whether copies were accessible online in the Member State of the court seized.
- The CJEU ruling is good news for copyright owners wanting to take action against infringement of their works in the courts of the Member States in which the infringing contents are made available.
- It will not be necessary for copyright owners to show that a website’s activity is targeted at internet users of the Member States of the courts which they seize.
- Copyright owners may however still need to bring multiple actions in multiple jurisdictions to obtain redress in all the territories in which the infringing articles may have been accessible online.
- The decision may favour “forum shopping” with authors taking action in jurisdictions in which they consider they have the most chance of success and it may pre-empt multiple cross-border actions.
- The decision is a surprising departure from previous settled case law on infringement of other intellectual property rights online pursuant to which liability only attaches to a website, if it is targeted at consumers of the Member State in which protection is sought.
- The decision suggests that harm occurs in all Member States in which the website content is made accessible, regardless of the intention of the website to target consumers in all Member States.
As set out in our newsflash of 28 June 2013 (see here), 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 domiciled company KDG Mediatech AG (“Mediatech”), which he claimed had copied his songs onto a CD, copies of which were sold by UK companies via websites accessible from 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 and the French Supreme Court referred two questions to the CJEU in relation to the application of Article 5(3) of the Brussels I Regulation which provides that in matters of tort, delict or quasi-delict, a person domiciled in a Member State may be sued in the courts of another Member State where the harmful event occurred or may occur.
The French Supreme Court asked whether Article 5(3) of the Regulation meant that courts of Member States in which infringing content was made accessible had jurisdiction or whether the infringing content would need to be targeted at 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 Austrian government argued that the questions referred by the French Court were inadmissible and that in particular the first question concerned the online offer of digital content whereas Mediatech had been involved in the reproduction of CDs. In his Opinion of June 2013, Advocate General Jääskinen had also deemed the questions inadmissible as he considered that the only right which may have been breached by Mediatech was the reproduction right, to which the questions referred did not relate.
The CJEU acknowledged that it was settled case-law that it could decline to rule on requests for preliminary rulings where it was obvious that the interpretation of EU law bore no relation to the facts of the main action. In this instance however, the CJEU considered that the outcome of the dispute depended on the CJEU’s answers and that the questions were admissible as a result.
The CJEU nevertheless rephrased the question and asked whether Article 5(3) of the Regulation meant that a court of a Member State in which a work is protected by copyright, has jurisdiction to rule on the liability of a company which is established in, and has reproduced in a second Member State the copyright work on a CD, when that CD is subsequently marketed in a third Member State through an internet site accessible in the Member State of the court seized.
Derogation to the general Defendant’s domicile rule
The CJEU noted that the general rule relating to questions of jurisdiction could be found in Article 2(1) of the Regulation under which jurisdiction is attributed to the courts of the defendant’s domicile.
The CJEU noted that by derogation to this rule, Article 5(3) granted special jurisdiction to courts of Member States in which a harmful even occurred or may occur. The CJEU specified that since this rule constituted a rule of special jurisdiction it should be interpreted restrictively, although the “place where the harmful event occurred or may occur” was still to be understood as covering, both (i) the place where the damage occurred and; (ii) the place of the event giving rise to it.