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Rights related to copyright infringement on the Internet and competent court: Attorney General EU proposes a criterion for identifying the damage "delocalized"
Wednesday, 03 December 2014 15:55

Rights related to copyright infringement on the Internet and competent court: Attorney General EU proposes a criterion for identifying the damage "delocalized"

Elisabetta Mina

The European Court of Justice is hearing for the first time on the criteria of allocation of jurisdiction in cases of infringement of copyright through the Internet , according to art. 5, paragraph 3 of the EC Regulation 44/2001.

The Court has had occasion to consider the problems posed by the Internet in the application of the rules of private international law, but never in a situation of widespread violations of rights related to copyright committed via the Internet, such as the present.

The case concerns a number of works of a professional photographer who lives in Austria, disclosed without his consent through the website of a German company , with national domain ending with ".de ", accessible to users residing in the UE members State.

In this regard the EU Advocate General has delivered his opinion, concluded that the best option in this case, it is a case of damage "delocalized", consists in excluding the jurisdiction of the courts of the State where the damage is realized and remain the preserve of such jurisdiction on the courts of the State where it is given the causal event .

The Advocate General observes that in the case of infringement of copyright through the Internet is necessary to determine which of the many solutions offered by law best fit, although it excludes both the application of the criterion of the center of interest, applied in the judgment eDate Advertising (in which the Court has provided a response to the issues raised by the violation of personal rights via the Internet), that the criterion of focusing (i.e. the jurisdiction of the courts of the State which must be focused activity detrimental, already applied in other contexts different but similar in its judgments L'Oreal, Donner and Football Dataco). Similarly, is excluded the applicability of the case law in this case the well-known case Pinckney characterized by three elements that lead to establish jurisdiction in the event of a cross-border violation of a property right of author: a substantive protection, protection factual and limited protection to the area. The task of establishing the existence of damage resulting from the violation of a property right of the author is exclusively entitled to the court in which that right is protected, where there is a risk that a violation occurs and only for the damages in that State. 

In the opinion of the Advocate General, the automatic application of the Pinckney’s criteria in a case where the damage is "outsourced" may not be effective because the solution reached by the Court in that judgment provides a response to the circumstances in which the risk of infringement, or actual infringement of copyright, it can be achieved clearly in a territory, even if the medium used is the Internet. Conversely, if the damage is "delocalized " because of the type of work or the means used for its communication, as the Portuguese Republic and the European Commission, it is not possible to apply the criterion of the place of realization of the damage, but only the jurisdiction of the courts of the place where the causative event occurred.

So in the opinion of the Advocate General, if damage "delocalized" over the Internet which affect the property right of the author occurs, the best option is excluding the possibility of appeal to the courts of the State where the damage has been reflected in the reserve and the jurisdiction on the courts of the State in which it determined the causal event . This option does not exclude the right to appeal and also the courts of the Member State where the defendant is domiciled - although in most cases, but not all, of the two criteria lead to the same hole , as in the case in question.

Given that the unauthorized dissemination of works protected by copyright over the Internet without the provision of the relevant physical media is now one of the most common violations on the Internet, the decision of the Court of Justice will be crucial for the future protection of these rights network.

elisabetta.mina@milalegal.com