Saturday 29 September 2012

Still on copyright and Brussels I: new case referred to the CJEU

Nooo! Another reference
on copyright and Brussels I!
As Jeremy promptly reported yesterday on the IPKat, a new copyright case has just reached the ever-active Court of Justice of the European Union (CJEU).
This is Case C-138/12 HI HOTEL HCF, a request for a preliminary ruling from the Bundesgerichtshof (the German Federal Court of Justice) in a case concerning copyright infringement of photographs.

The German court is seeking clarification as to the proper interpretation of Article 5(3) of Regulation 44/2001 (also known as 'Brussels I'), which reads as follows:

A person domiciled in a Member State may, in another Member State, be sued ... in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur ...

As reported on the UK IPO's website, the question the CJEU has been asked to address is the following:
Is Article 5(3) of Regulation (EC) No 44/2001 to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) in the case where the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?
     Don't be silly! It's all so fun!
At the moment there seems to be indeed a lot of controversy surrounding the proper interpretation of Regulation 44/2001 in relation to intellectual property cases.
Readers of this Blog will promptly recall that a few months ago another case concerning the interpretation of Article 5(3) of Regulation 44/2001 was referred by the French Court of Cassation. This is Case C-170/12 PINCKNEY (see here and here), in which the French court is seeking clarification as to whether Article 5(3) is 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,
- does that content also have to be, or to have been, directed at the public located in the territory of that Member State, or must some other clear connecting factor be present?

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?

Similar issues have already been addressed by the CJEU in relation to online keyword trademark infringements. In Case C-523/10 WINTERSTEIGER (on which see IPKat posts herehereherehere and here) the CJEU, among the other things, offered guidance as to the proper interpretation of the notion of “place where the harmful event occurred or may occur” in Article 5(3) of Regulation 44/2001 in the context of trademark infringements.

And you can comment on it!
It will be interesting to see what the CJEU responds in PINCKNEY and HI HOTEL HCF, also because copyright  - differently from trademarks - is not a registered right. Therefore, the interpretation of private international law notions appears quite difficult and, also, slightly unpredictable here. This is apparent if one thinks about the many approaches which have emerged at the level of individual Member States thus far. 

Going back to HI HOTEL HCF, do any German readers possess some more detailed background information about it?
In any case, you can let IPO know what you think of this reference, by emailing your comments to by 4 October 2012. 

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