Referring court and Member State
France, Third Instance, Cour de cassation
Summary
This case on the interpretation of Art 5(3) of Brussels I was referred to the CJEU in French proceedings between Mr Pinckney (a French resident) and KDG Mediatech AG (a company established in Austria) concerning a claim for damages resulting from the alleged infringement of Pinckney’s copyright. Pinckney discovered that 12 songs recorded by the group Aubrey Small on a vinyl record that he claimed to be the author, composer and performer of had been reproduced without his authority on a CD pressed in Austria by Mediatech, then marketed by UK companies through various internet sites accessible from his residence in France. He brought an action against Mediatech in France seeking compensation for damages resulting from the infringement of his copyright. A plea of lack of jurisdiction, raised by Mediatech, was dismissed by the court on the ground that Pinckney had been able to purchase the records at his residence in France from an internet site accessible to the French public which was sufficient to establish a substantial connection between the facts and the alleged damage. It was decided on appeal that the French court lacked jurisdiction on the ground that the defendant was domiciled in Austria and the place where the damage occurred cannot be situated in France. Pinckney appealed against the judgment before the referring court by arguing that the French courts had jurisdiction under Art 5(3) of Brussels I. Questions were referred to the CJEU. After dealing with an inadmissibility claim and finding the questions admissible in contrast to the AG, the CJEU started its analysis on substance. The CJEU reaffirmed the principles on Art 5(3) established in C 228/11 Melzer. However, it recognised that, unlike Melzer, this case did not concern the possibility to sue one of the presumed perpetrators of the alleged damage before the court seised on the basis that it was the place of the event giving rise to the damage. The question was whether that court had jurisdiction on the ground that it was the court for the place where the alleged damage occurred. The CJEU cited its judgments in C-509/09 and C 161/10 eDate Advertising and Martinez and C 523/10 Wintersteiger where it had interpreted Art 5(3) as regards infringements committed via the internet and produced their effects in numerous places, and distinguished between infringements of personality rights and infringements of intellectual and industrial property rights in identifying the place where damage allegedly caused via the internet occurred. It observed that copyright is subject to the principle of territoriality, but since copyrights must be automatically protected in all Member States by Directive 2001/29, they may be infringed in each MS under the applicable substantive law. Accordingly, it found that as regards the alleged infringement of a copyright, jurisdiction to hear an action in tort, delict or quasi-delict is already established in Art 5(3) in favour of the court seised if the MS in which that court is situated protects the copyrights relied on by the plaintiff and that the harmful event alleged may occur within the jurisdiction of the court seised. It continued that the likelihood of a harmful event arises from the possibility of obtaining a reproduction of the work from an internet site accessible within the jurisdiction of the court seised. But, it continued that that court has jurisdiction only to determine the damage caused in the MS within which it is situated. This interpretation meant that the criteria of accessibility of a foreign website can be the mere basis of jurisdiction in Art 5(3).