According to the judgment of the ECJ, published on 3 October, where a CD offered online is accessible in one Member State the courts of that State may adjudicate on alleged infringement of copyright. Jurisdiction is, however, limited to the damage caused in that Member State.
According to the regulation on jurisdiction in civil and commercial matters, in general, the courts with jurisdiction to hear a dispute are those of the defendant’s domicile. However, in certain cases, the defendant may exceptionally be sued in another Member State. Thus, in matters relating to tort, delict and quasi-delict, a dispute may be brought, inter alia, before the courts of the place where the alleged harmful event occurred.
In Case C-170/12 Pinckney v KDG Mediatech AG, a case referred by the French Cour de Cassation, the ECJ gave a ruling on whether, in the light of the exception to the general principle, the author of a protected work may bring a claim for damages before the courts for the place where he is domiciled for harm resulting from an unauthorised online offer of reproductions of his work.
Peter Pinckney lives in Toulouse. He claims to be the author, composer and performer of 12 songs recorded by the group Aubrey Small on a vinyl record. He discovered that his songs had been reproduced without his authority onto a CD pressed in Austria by a company, KDG, established in that Member State and subsequently marketed by UK companies through various internet sites accessible from Toulouse (and most other places). Mr Pinckney therefore sued the Austrian company before the Tribunal de grande instance de Toulouse (Regional Court, Toulouse) for damages for the harm suffered as a result of the alleged infringement of his copyright.
KDG challenged the jurisdiction of the French courts and the issue was eventually brought before the Court of Cassation, which latter asked the ECJ to consider whether, in such circumstances, it must be held that the harmful event occurs in the Member State where the author is domiciled, thus giving the courts of that State have jurisdiction.
In its judgment, the ECJ notes that, in cases of infringements committed via the internet which may produce their results in various places, the place where the harmful event occurs may vary according to the nature of the right allegedly infringed. Although the harmful event may occur in a specific Member State only if the right allegedly infringed is protected there, the identification of the place where the harmful event occurred depends, in any event, on which court is best placed to determine whether the allegation of infringement is well founded. However, it is not a requirement for the activity giving rise to the harm to be directed to the Member State in which the court seised is situated.
The Court of Justice states that the courts of the Member State which protects the copyright relied on by the author and in which the alleged harmful event may occur are the courts which have jurisdiction to adjudicate on an alleged copyright infringement. However, since the protection granted by the Member State in which the court seised is situated applies only within that Member State, the court seised has jurisdiction to adjudicate solely with respect to the harm caused in that Member State. The ECJ states:
in the event of alleged infringement of copyrights protected by the Member State of the court seised, the latter has jurisdiction to hear an action to establish liability brought by the author of a work against a company established in another Member State and which has, in the latter State, reproduced that work on a material support which is subsequently sold by companies established in a third Member State through an internet site also accessible with the jurisdiction of the court seised. That court has jurisdiction only to determine the damage caused in the Member State within which it is situated.
It seems fairly clear that Peter Pinkney won this stage, although this is of course just a preliminary ruling. The Court de Cassation now has to apply it. They may require a while to decode it for, truth to tell, and even by the legendary standards of the ECJ, this judgment appears to be more impenetrable than seemed possible for such a (relatively) straightforward issue.
The full judgment may be accessed here.
