The Court of Justice of the EU (“CJEU”) has now ruled on the Pinckney case, dealing with national courts’ competence to hear online copyright infringement cases in the EU. See our post on the Opinion of Advocate General (“AG”) Niilo Jääskinen of 13 June 2013 here.
In his Opinion, AG Jääskinen took the view that, in identifying the competent national courts, the territory in which the damage occurs is a relevant factor that should be considered. He went on to opine that the damage from an online copyright infringement occurs in the territory whose population was targeted by the infringing website (at para. 64). The activity of the website should disclose an intention to target persons in that territory (para. 61).
The CJEU did not follow the AG. It took the view that the relevant criterion was not whether the activity of the website was “directed to” a specific Member State, but rather whether copies of the infringing product (in this case CDs with Mr Pinckney’s music) were accessible online in a Member State (para. 44). The CJEU’s judgment marks an interesting departure from previous case law on online infringement of other IP rights (e.g., trademarks and database rights), under which liability can be attributed to a website only when it is targeted at consumers in a specific Member State.
The CJEU’s ruling means that copyright owners do not need to show that a website’s activity is targeted at Internet users in a specific Member State. Nor do they need to take on the notoriously difficult task of proving the intention of the website owner. However, the CJEU made clear that copyright owners might need to bring multiple actions in multiple Member States in order to obtain redress in all of the territories in which the website could be accessed (para. 45).