On 13 June 2013, Advocate General (“AG”) Niilo Jääskinen of the EU’s Court of Justice (CJEU) issued his non-binding Opinion in the Pinckney case, dealing with the question of courts’ competence to hear online copyright infringement cases in the EU. In his Opinion, the AG extended to copyright principles developed in relation to other IP rights, such as trademarks (L’Oréal) and database rights (Football Dataco).
Mr Pinckney (a songwriter resident in France) alleged the infringement of his copyright through, inter alia (i) online sale of unauthorized CDs by two British companies, and (ii) online access to these songs offered by these companies. In his Opinion, the AG recalled the basic principles of EU private international law for tort liability and then looked more closely at the courts that are competent to hear online copyright infringement cases. One of the criteria to identify the competent courts is the territory in which the damage occurs. The AG took the view that the damage from an online copyright infringement occurs in the territory whose population was targeted by the infringing website (para. 64). The activity of the website should disclose an intention on the part of its performer to target persons in that territory (para. 61).
The ultimate judgment in Pinckney may have broader implications for the approach taken to online distribution in other areas of law. For example, when assessing compliance of distribution agreements with EU Competition law, the “active sales” concept is fundamental (i.e., sales targeted at customers in a specific territory). The Commission uses various objective indicia to identify active sales (see Commission Guidelines, para. 51). If the court takes jurisdiction in Pinckney, it may be that these indicia could also be complemented by other elements, perhaps including intention.
It remains to be seen whether the CJEU will take jurisdiction and, if it does, whether it will follow the AG’s approach.