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Friday, 14 June 2013

AG Jääskinen says that "intention to target" applies also to online copyright infringement cases

At last! Merpel celebrates
publication of the AG Opinion
in
Pinckney
While busy thinking (as she constantly does) about online copyright-related issues, this Kat wanted to see whether there were any news concerning her long-time obsession (here and here) with Case C-170/12 Pinckney.

And indeed here is some news at last!

Yesterday Advocate General Niilo Jääskinen issued his Opinion [not yet available in English though - lack of timely translations was discussed also during last Wednesday's katparty] on this alluring reference from the French Court of Cassation, seeking clarification as to the interpretation of the Brussels I Regulation (Regulation 44/2001) as applied to online copyright infringement cases.

The French court referred the following questions to the Court of Justice of the European Union (CJEU):

Is Article 5(3) of [Brussels I Regulation] to be interpreted as meaning that, in the event of an alleged infringement of copyright committed by means of content placed online on a website,
-    the person who considers that his rights have been infringed has the option of bringing an action to establish liability before the courts of each Member State in the territory of which content placed online is or has been accessible, in order to obtain compensation solely in respect of the damage suffered on the territory of the Member State before which the action is brought,
or
-    does that content also have to be, or to have been, directed at the public located in the territory of that Member State [eg intention to target] or must some other clear connecting factor be present?

Kat light pink knees
Is the answer to Question 1 the same if the alleged infringement of copyright results, not from the placing of dematerialised content online, but, as in the present case, from the online sale of a material carrier medium which reproduces that content?

According to the Italian version of the Opinion, overall the AG thinks that the CJEU should declare the request for a preliminary ruling inadmissible. However, should the Court decide to consider the case, in the event of alleged infringement of the exclusive rights of distribution by means of online sales of material supports (CDs) that contain copyright-protected materials or communication by means of online transmission of copyright-protected contents, then Article 5(3) of Brussels I Regulation should be interpreted as allowing the relevant rightsholder to sue the alleged infringer in the Member State:

- in which the subjects who were responsible for the making available online of CDs are established, to seek full redress of damages, or

- to which the activity of the concerned website is targeted, to seek redress of the damages suffered in the territory of that Member State.


We'll see whether the CJEU decides to follow AG Jääskinen's Opinion, although this Kat suspects that it is unlikely that it will depart significantly from it, especially after exciting judgments like Sportradar, Pammer and Donner

1 comment:

Martin Šrámek said...

To be honest, Merpel wasn't the only one doing somersaults this morning.

I've been looking forward to this opinion for a long time. And since it seems that there is a chance that we will not receive a decision in the matter it is a slight disappointment.

It seems (from the German translation) that the critics of the eDate, Martinez decision will be satisfied with the Opinion.

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