Written by Ezra Steinhardt and Colin Warriner
On 3 October 2013, in the case of Peter Pinckney vs. KDG Mediatech AG, the Court of Justice of the European Union (CJEU) confirmed that, with certain qualifications, when a copyrighted work is reproduced in one Member State, and offered for sale online by companies established in another, the author of the work can bring an action for copyright infringement in the courts of their own home Member State if infringing copies are accessible from that State – even if that State is not among the States where the work was reproduced and/or made available online.
In the case, the claimant, a musician based in France, alleged in French courts that Mediatech pressed CDs featuring unauthorised copies of his songs in Austria, which were then offered for sale online by a company in the UK. Mediatech responded by challenging the jurisdiction of the French courts to hear the case. The case was ultimately referred to the CJEU from the French Court of Cassation.
The CJEU’s decision in the case hinged on its interpretation of EC Regulation 44/2001 (“the Brussels Regulation”), which governs questions of jurisdiction. The general rule, from Article 2(1), is that a person domiciled in an EU Member State must be sued in the courts of that Member State. However, there are exceptions to that rule.
In “matters of tort, delict and quasi-delict” (including copyright infringement), Article 5(3) allows claimants to sue in the courts of the Member State “where the harmful event occurred or may occur.” The CJEU stated that that can be either the place of the event giving rise to the damage (in this case, Austria or the UK) or the place where damage occurred. Because the infringing CDs could be purchased online from France, even though they were not specifically directed there, the Court deemed that damage occurred in France and so the claimant could choose to sue the defendant there.
The CJEU’s broader conclusion, as detailed above, was that in the event of alleged copyright infringement, where a reproduction was carried out in one Member State and offered for sale online by companies established in another, the author of the work can bring an action in the courts of his or her home Member State (even if different from the States of reproduction and making available) if the infringing reproductions are accessible there. The Court gave an important qualification to this conclusion, however, by ruling that that court will only have jurisdiction to determine the damage caused in the Member State within which it is situated. For example, the French court could not substitute itself for the courts of Austria and the UK to determine what damage may have been caused by the infringement under the local copyright laws in those countries.
The CJEU’s judgment was confined only to the question of jurisdiction: it did not rule on whether there actually had been copyright infringement in France on these facts. However, the ruling should still be useful for copyright holders, because it establishes that the key factor in determining jurisdiction is where the internet site and infringing activities are accessible. If an infringement occurs through a generally accessible website, it should now be clearly possible to argue for jurisdiction in any EU Member State.