Thursday 26 September 2013

It's time for CJEU fun again

Awww ... Two new copyright cases
to think (and dream) about
1709 Blog readers who also follow The IPKat will be already aware that there are two new exciting copyright references for a preliminary ruling awaiting a decision of the Court of Justice of the European Union (CJEU). 

The first reference is from Austria and concerns jurisdiction in online infringement cases. Case C-441/13 PEZ EJDUK is in fact all about interpretation of Article 5(3) of the Brussels I Regulation and what "where the place where the harmful event occurred or may occur" may possibly mean in the context of websites which host allegedly infringing materials (a photograph in this case). 

The question awaiting an answer is the following: 

'Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [the Brussels I regulation] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed in that a photograph was kept accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled [Or. 2], there is jurisdiction only

- in the Member State in which the alleged infringer is established; and

- in the Member State(s) to which the website, according to its content, is directed?' [also known as 'intention to target', on which see - among other things - the recent Opinion of Advocate General Jääskinen in Case C-170/12 Pinckney (here, here, here)] 

As recalled by helpful and learned copyright resource Cyberleagle by 1709 Blog friend and Bird&Bird partner Graham Smith, this is just the latest in a series of recent references concerning internet jurisdiction. 


The second reference is Case C-419/13 ART & ALLPOSTERS INTERNATIONAL. This is a Dutch case concerning (alleged) transformative uses of copyright-protected works, seeking clarification about exhaustion of the right of distribution. 

Allposters used the works of rightholders represented by Dutch collecting society Pictoright by altering and reproducing them on canvas. Allposters argues that the works were significantly altered and disseminated to the public in a different form; therefore Allposters did not infringe the copyright of the rightholders (for an accurate synopsis see EU Law Radar ).

The Dutch Supreme Court has referred the following question to the CJEU:

'Does Article 4 [concerning the distribution right] of Directive 2001/29/EC (the Copyright Directive) govern the answer to the question, whether the distribution right of a copyright-protected work which has been sold and delivered within the EEA with the consent of the rightholder where the reproduction has been subsequently altered in respect of its form and is again brought into circulation?'

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