An important European development concerning Internet copyright infringement was rendered by judgment dated 3 October 2013 and issued following procedure C-170/12, the Court of Justice of the European Union (CJEU) stated that under Article 5, paragraph 3 of the EC Regulation No. 44/2001 on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters. The author or copyright holder of a protected work, illegally reproduced and distributed on the Internet, may take legal action for infringement before the Court of the State in the residence of the author if the offending website displays the infringing material to the public and appears accessible in the territory of the author’s resident State. The CJEU indeed clarified that the resident State Court is deemed competent to assess and award the sole damage occurring in the territory of the Member State in which it is located.

The reasoning of the Court relies upon the settled case-law which interprets “the place where the harmful event occurred or may occur”, -as provided in Article 5, paragraph 3 of the Regulation 44/2001. Thus, both the jurisdiction where the wrongful act is committed that originates the damage and as well as the jurisdiction where the damage resulting from that event has materialized. In this regard, the Court followed its orientation according to which, in case of an offence committed on the Internet, the damages caused may be suffered in several places, depending on the law allegedly violated.

The CJEU then recited, in terms of violation of personality rights, that there is a widespread jurisdiction of the Courts of each Member State from which territory the offending content disseminated online becomes accessible. This jurisdiction, however, is limited to the damage caused in that Member State in which the harmful content has been accessible. According to the criterion of the place or places where the damage occurs, only the Court of the Member State where the injured party has the centre of his interests shall be competent to calculate and award the whole damage suffered.

By contrast, in the case of violation of the patrimonial rights, which are generally governed by territorial jurisprudence, the Courts of a Member State may only adjudge those violations in exercise of their territorial jurisdiction. However, the jurisdiction and ability to redress wrongs may be extended on the basis of the defendant’s domicile, as provided in Article 2 of the above-mentioned Regulation. Unlike the violation of the personality rights, the damages of which occur with greater effect at the place where the injured party has the centre of his interests, the damages arising from a violation of the patrimonial rights are not necessarily connected to the author’s centre of interests, but rather to the place in which the counterfeited work is offered to the public.

One could ask, in the different hypotheses, what would have been the determination of the Court if the moral rights of the author had been damaged. In such a case, the ontological affinity between the author’s moral rights and the personality rights would suggest a jurisdiction’s location under Article 5, paragraph 3 of the above-mentioned Regulation, similar to the one detected in cases of personality rights’ violation; namely, on the one hand, a widespread jurisdiction of the Court of each Member State in which territory the counterfeited content is accessible, limited, however, to the damages materialized in such a territory, on the other hand, for the damage in its entirety a centralized jurisdiction of the Court of the Member State where the injured party has the centre of his interests.

By Barbara Sartori with the cooperation of Marco Vittorio Tieghi