By Ezra Steinhardt and Fredericka Argent

InfoCuria and the UK Intellectual Property Office have released new information about a recent question referred to the Court of Justice of the European Union (CJEU) from the German Federal Supreme Court (Bundesgerichthof).  In essence, the reference asks the CJEU whether European courts, when considering copyright infringement in their territories, may deem contributory acts of infringement in other Member States as also having taken place within their jurisdiction.

More specifically, the reference, named HI HOTEL HCF (Case C-387-12) asks the CJEU to consider whether a court in one Member State has jurisdiction to rule both on a copyright infringement that occurred in its Member State, but also on the “contributing act” to that copyright infringement which took place in the territory of a second Member State by a person who assisted in the principal infringement on the domestic territory.  The CJEU is asked to interpret Article 5(3) of the Brussels I Regulation (Regulation 44/2001), which sets out that, for matters relating to tort (or, in civil law jurisdictions, delict or quasi-delict) a person domiciled in a Member State may be sued in another Member State if that is where the “harmful event” occurred or may occur.  The key question in the context of a cross-border copyright infringement is therefore where the “harmful event” occurs.

This will not be the first time that the CJEU has ruled on Article 5(3).  Earlier this year, another,  similar reference from the French Cour de Cassation asked the CJEU to consider where the “harmful event” occurs when infringing material is published online (Peter Pinckney v KDG mediatech AG Case (C-170/12)).  The CJEU has yet to publish its opinion in that case.

In an older ruling on Article 5(3), not involving copyright, the CJEU has held that the “place where the harmful event occurred or may occur” means both the Member State where the damage occurred and the Member State where the event giving rise to the damage occurred.  In that case, applicants were allowed to sue in the courts of either Member State.

Non-parties are generally unable to file briefs directly with the CJEU, but they can communicate their views via their Member State (all Member States are asked by the Court if they wish to make submissions in a case or participate in oral argument).  The UK IPO is seeking comments now, and will only hear comments until the end of today, 4 October 2012 — but the UK itself has a much longer period, until 5 December, to make its comments to the Court.