Crossfire

Matheson’s technology and IP law blog

Forum shopping for online copyright infringement: The CJEU says “Yes!”

October, 2013

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The CJEU delivered its much anticipated judgment in Case C 170/12 Pinckney v KDG Mediatech AG on 3 October. The judgment follows a reference from the French Court of Cassation asking whether a French court has jurisdiction in circumstances where the Plaintiff alleges that the Defendant infringed his copyright by transferring his songs onto CDs and allowing these CDs to be marketed online by two UK companies.

Jurisdiction between EU Member states is regulated by 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”. In asserting the jurisdiction of the French court the Plaintiff argued that the fact that he was able to purchase the CDs at his residence in France from an internet site accessible to the French public was sufficient to establish a substantial connection between the act of infringement and the alleged damage. The Defendant argued that the French court did not have jurisdiction, claiming that jurisdiction could only be established in the courts of the place of the defendant’s domicile, which is Austria, or the courts of the place where the damage was caused, that is the place where the alleged infringement was committed, in the UK.

The CJEU relied on the provisions of section 5(3) of the Brussels I Regulation which provides that a company may be sued in the courts of the place where the harmful event occurred or may occur. It held that this provision covers both the place where the damage occurred and the place of the event giving rise to the damage. This finding was on the basis that jurisdiction will be established if copyright is protected by the relevant Member State and if the harmful event occurs, or could occur, within this Member State. In this case, the CJEU confirmed the jurisdiction of the French court on the grounds that the plaintiff’s music was protected under French copyright law and because the Plaintiff was able to purchase a copy of the allegedly infringing CD from a website that was accessible in France.

This means that jurisdiction will be established in the courts of the place where the damage occurred or where it might occur. Essentially the CJEU has confirmed, at least in the EU, the widely accepted approach that if a website is accessible in a country then the courts of that country can take jurisdiction. This means from a practical perspective that plaintiffs can forum shop but must bear in mind that their damages claim will be limited to damage arising in the relevant jurisdiction. The practical import of this is that proceedings may be brought against defendants in more than one Member State and the court seized will only have jurisdiction to determine the damage caused within the Member State in which it is situated.