Tuesday, 29 May 2012

Might this be the mystery case?

This blog's quest for details of the mysterious reference to the Court of Justice of the European Union (CJEU) in Case C-170/12 Pinckney has yielded an early dividend. A correspondent (thanks!) has emailed to suggest that this case may be a reference from the Cour de cassation, France, to the CJEU concerning jurisdiction in online copyright infringement disputes in M. X v Kdg Mediatech AG , which is available online thanks to Legalis here.

The action seeks to test out the legal position regarding the offering of CDs for sale on the internet, looking this time at the distribution right, not the right of communication to the public (though the questions referred appear to cover both communication to the public and physical distribution).

Early efforts at online trade caused more
technical problems than legal ones ...
In short, one X, a songwriter resident in France, claimed that Austrian company Mediatech infringed his copyright by making CDs of his songs which were then sold by British companies on websites that were accessible in France. His preference would be to sue Mediatech in France, but the French court said it did not have jurisdiction. X then appealed and the top French appellate court, the Cour de cassation, is now asking the CJEU whether Article 5(3) of the Brussels Regulation means that, in a case of online copyright infringement, the claimant can issue proceedings in any country where the site can be viewed (for the purpose of obtaining damages for that jurisdiction alone) -- or does the content of the website have to be targeted at that jurisdiction or have some other connection with the jurisdiction? And does it make any difference if the infringing content is in a physical medium?

Has anyone any better suggestions? And would anyone like to hazard a guess as to what, in the light of current CJEU jurisprudence, the answer is likely to be?
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3 comments:

  1. Jeremy29 May 2012 at 13:56

    All of the above is helpful but doesn't connect the reference to the nam "Pinckney". This missing link comes from Francis Davey via Philippe Bradley and seems to do the trick!

    http://www.minbuza.nl/ecer/hof-van-justitie/nieuwe-hofzaken-inclusief-verwijzingsuitspraak/2012/c--zaaknummers/c-170-12-pinckney.html

    Thanks, Francis and Philippe.

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  2. Catherine29 May 2012 at 14:05

    The French decision you are referring to is also available on Legifrance, official website publishing legal instruments and major court decisions (http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000025662199&fastReqId=1724742270&fastPos=1)

    If you are interested, you can also read the blogpost I wrote on this decision (http://kluwercopyrightblog.com/2012/05/04/jurisdiction-issue-over-the-sale-of-copyright-infringing-cds-a-new-referral-to-the-cjeu-by-the-french-court-of-cassation/)

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  3. Eleonora Rosati29 May 2012 at 14:07

    I guess that the response of the CJEU will not be very different from that provided in the recent Wintersteiger ruling (Case C-523/10), although the Court will have to clarify some aspects of that decision which could be controversial as far as copyright is concerned (ie "place where the IPR is protected")

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