|Henrik Saugmandsgaard Øe|
This is yet another reference for a preliminary ruling regarding interpretation of the private copying exception within Article 5(2)(b) of the InfoSoc Directive, but with yet another interesting twist.
The referring court (the Austrian Supreme Court) is in fact asking the Court of Justice of the European Union (CJEU) to say whether a claim for missed payment of ‘fair compensation’ under this provision can be considered akin to 'tort, delict or quasi-delict' within what is currently Article 7(2) of Brussels I Recast [formerly Article 5(3) of Brussels I] for the sake of determining the court(s) competent to hear such action.
Besides the general rule (Article 4) that allows one to sue in the Member State where the defendant is domiciled/established, as a special rule Article 7(2) of Brussels I Recast also allows actions relating to tort, delict or quasi-delict, to be brought in the courts "for the place where the harmful event occurred or may occur".
IPKat readers will promptly recall that the CJEU has indicated how this provision should be interpreted on a number of occasions, including copyright [here, in which the CJEU indicated that accessibility suffices], and national trade marks [here].
This reference has arisen in the context of litigation between Austrian collective management organisation Austro-Mechana and Amazon concerning the international jurisdiction of the Austrian courts to entertain legal proceedings by which the former seeks to obtain payment from the latter of the remuneration due by reason of the first placing of recording media on the domestic market, in accordance with Austrian legislation.
|Is failure to pay compensation |
for private copying ...
Both the Vienna Commercial Court and the Vienna Higher Regional Court sided with Amazon and dismissed Austro-Mechana's action.
The Austrian Supreme Court was not so sure that the correct interpretation of Article 7(2) of Brussels I is that obvious, so it decided to stay the proceedings and seek guidance from the CJEU.
The AG Opinion
AG Saugmandsgaard Øe summarised the content of the question referred to the CJEU as asking whether the action brought by Austro-Mechana against Amazon constitutes a matter ‘relating to tort, delict or quasi-delict’ within the meaning of that provision in Brussels I Recast.
The AG noted at the outset that the jurisdiction criterion in Article 7(2) is a special one and, as such, should be interpreted narrowly. The AG also recalled that this provision is not applicable to actions that relate to a contract.
As such, the AG considered whether legal proceedings seeking payment of the fair compensation within Article 5(2)(b) of the InfoSoc Directive concern ‘matters relating to a contract’ within the meaning of Article 7(1)(a) of Brussels I Recast. The AG concluded in the negative on this point because a contract presupposes the establishment of a legal obligation freely consented to by one person towards another. This would not be the case of the fair compensation requirement in Article 5(2)(b) of the InfoSoc Directive.
This would be the case of compensation for private copying: failure to pay the compensation due to rightholders would cause a damage to the relevant rightholder and be "an absolutely quintessential instance of a matter relating to tort or delict" (para 75).
The AG noted that, while it is true that the marketing of mobile telephones and the private copying to which Austrian law relates are lawful acts in Austria, it does not follow from the fact that those acts are lawful that a breach by Amazon of the obligation to pay the levy provided for in the law is also lawful.
As such, Austrian courts - being the courts of the place of the harmful event - would have international jurisdiction to the hear the action brought by Austro-Mechana.
All in all