Name: Piotr Czulak.
Master track: European Private Law.
Name of supervisor: mw. prof. dr. A.A.H. (Aukje) van Hoek.
Date of submission: 2 January 2017.
Piotr Czulak
Application of PIL framework in cases of online copyright infringements – review
of approaches adopted by the CJEU in matters of jurisdiction.
2 List of abbreviations:
• AG – Advocate General.
• CJEU – Court of Justice of the European Union. • EU – European Union.
• MS – Member State.
• PIL – Private International Law.
Table of contents
Chapter I Introduction ...4
Chapter II. PIL framework and state of the art. ...8
1.1 Jurisdiction. ...8
1.2 Case law. ...10
1.3 Summary. ...12
Chapter III. Relevant case law and commentary. ...13
1.1. Pinckney ruling. ...13
1.2. Hejduk ruling. ...14
1.3. Case commentary. ...15
1.4. Summary. ...18
Chapter IV. “Access approach” as a solution ? ...19
1.1. Addressing the criticism. ...19
1.2. Further discussion on the Advocates General's alternative propositions. ...26
1.3. Placing the argument in a larger context. ...29
1.4. Additional measures. ...31
1.5. Summary ...33
Chapter V Conclusion. ...35
3 Abstract
This thesis presents a comprehensive view on the “access approach”, adopted in Pinckney and Hejduk rulings. It explores whether the use of such approach, supplemented by additional measures on the substantial law and applicable law level, would improve the overall level of copyright protection in the online environment within EU. First, the typical issues concerning online copyright infringements are presented in pair with the state of the art before the chosen rulings. Secondly, the Court's decisions and their reception in the legal doctrine are summarized. Thirdly, the Author presents his view on the arguments against the “access approach”, highlights the potential advantages of the method in comparison to possible alternatives and discusses the additional measures on the substantial and applicable law level. Additionally, other disadvantages are mentioned, such as the risk of torpedo actions under Brussels I Recast. In the Conclusion, the Author summarizes his line of reasoning and offers his view on the answer to the initial research question.
4
Chapter I Introduction
The modern world relies heavily on the exchange of information through the Internet. Users share photos, videos, documents and countless other kinds of data. The easiness and swiftness of online sharing offers a number of advantages for our society. However, the same characteristics can prove troublesome in the context of copyright infringements. Historically, if someone's copyrights were to be infringed, a longer process was required. E.g. a photographer's photo was published in a magazine without his or her consent, which meant the magazine in question had to be printed, distributed and probably bought, before the infringement was even noticed. Nowadays, such an infringement is just, metaphorically speaking, a click away. A file is uploaded in a matter of seconds (if not less) and the copyright infringement takes place. Paired with the increasingly more important role Internet plays in our everyday lives, the significance of online copyright infringements is undeniable. In practical term, it is worth noting that over 33 sectors of EU market are considered to be copyright-intensive, which account for over 3 % of employment within the EU1. The statistics for online ''piracy'' indicate that the amount of online copyright infringements remains high in the EU, moreover, in certain a potential for growth can be observed2. Additionally, the rising popularity of online platforms that allow to repost and share content, with a somehow “lenient” attitude towards proper licensing or naming the copyright owners, such as Tumblr, Twitter, Instagram and etc., can be a reason to argue that the overall amount of online copyright infringements may rise.
The high amount of online copyright infringements leads to measurable losses3 for the
copyright owners. The national and EU level legislation offers a system of copyright protection and procedures for maintaining such protection. The questions, does the EU law provide sufficient and reasonable legal measures to counter the high levels of online piracy? At the substantive law level, this question has been and still is being discussed in a variety of ways, with emphasis put on different aspects of the problem. This thesis will, however, look at the problem from the EU Private International Law perspective. It is worth noting here that the answer to the stated question depends on which criteria the assessment is based upon. For the purpose of this thesis I will assume that the “sufficient and
1
European commission, 'Digital Single Market - Copyright' (Europa.eu, 10 November 2016) <https://ec.europa.eu/digital-single-market/en/copyright> accessed 27 December 2016
2S. Pine, 'Do you know how big Online Piracy really is?' (Business Insider, 31 March 2016)
<http://www.businessinsider.in/Do-you-know-how-big-online-Piracy-really-is/articleshow/48424382.cms> accessed 16 November 2016 ;
also
Ernesto, Torrentfreak, 'Europe Has The Highest Online Piracy Rates, By Far' (TorrentFreak, 1 August 2016) <https://torrentfreak.com/europe-has-the-highest-online-piracy-rates-by-far-160801/> accessed 16 November 2016
3
5 reasonable” legal measure can be understood as a measure that allows achieving a high level of protection for copyright owners against online infringements, while maintaining a balance of interests of the interested parties (potential infringers and copyright owners).
Online copyright infringements, by their nature, are mostly cross-border4, therefore, on the EU
level Private International Law rules come into play. PIL framework provides rules on jurisdiction and applicable law that dictate, in short, how and to which court the jurisdiction should be awarded and which law should be applied. However, its provisions are designed to encompass a variety of possible scenarios and kinds of infringements and they do not always provide clear and precise rules on specific matters, which arise in actual cases. This can lead to a decrease in overall level of protection for copyright owners. And as the application of the jurisdiction rules is the first step that needs to be taken in the process that eventually leads up to the attribution of responsibility and protection of rights of the copyright owners, it is crucial for it to operate properly to allow for a high level of protection in the EU. That is why it is important that the relevant court with suitable competences, the CJEU, provides certain guidelines in how to approach such cases.
In this paper I would like to explore an example of such practice, namely the Pinckney and Hejduk rulings. In the aforementioned rulings, concerning cases of online copyright infringements, the CJEU first introduced and then upheld a so-called “access approach” to the interpretation of the article 7(2) of Brussels I Recast Regulation5. Interestingly, the adopted approach stirred a substantial amount of controversy6 in the legal doctrine. In my opinion, a selection of potential advantages of the “access approach” was largely ignored in the commentary released soon after the rulings, similarly to different aspects that could turn to be disadvantageous. My purpose in this thesis will be to present a more comprehensive look at the proposed approach, in part defending the Court's approach, while still addressing the potential issues that would arise, were it to be adopted. The starting point for the further discussion is the notion that the “access approach”, in theory, paired with certain necessary measures on the substantive law level, might be beneficial to the overall level of protection of copyright owners in the EU. I will evaluate the approach of the Court based on the previously set criteria, as in whether it leads to a sufficient and reasonable legal measure, the measure in question being the jurisdiction alternative, set up in Article 7(2), interpreted in accordance with the “access approach”. In order to do
4
Assuming that infringing content available online can be accessed in more than one State.
5Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters, [2012] OJ L 351
6 so, I will discuss the arguments of the critics, the potential alternatives and present my own view on the issue.. The argument will be placed in a larger context of the overall effect of the EU law and the incentives behind a more reasonable protection of copyright owners. Another aspect of the issue at hand is the fact that the current trends in online copyright infringements pose a new type of threat, which renders some of the previously used methods obsolete. The underlying assumption is, that even if the chosen rulings dealt mostly with jurisdiction issues on the PIL level, the scope of the discussion should be bigger, as conclusions reached at that level can affect other spheres, such as the level of protection of copyright owners in the EU. In my opinion, matters such as the interpretation of Article 7(2) of Brussels I Recast should not be discussed in a “void”, without any relation to the relation to other fields of law and the long-term effects to the chosen methods.
Further caveat for the scope of the thesis is that I will not discuss all possible remedies available to the plaintiff in copyright infringement cases in context of the “access approach”, instead choosing to focus on the damages. The reason is that, I would argue, the damages constitute the most important remedy out of the potential alternatives in cases of online copyright infringements. As it was mentioned, such infringements are of a specific nature, which results in the damages being the most “useful” remedy. The reason for that is that the moment a copyright-protected content is made accessible online, a cessation of breach or an injunction may not constitute a sufficient remedy, in a sense that it does not offer much change to the situation. The infringing content is already on the Internet, where it can be made available on further websites, shared through p2p networks and multiplied in various different ways. If the “original” infringer (e.g. the owner of a website that made the content in question available first) ceases his actions, that does not lead directly to a restitution of a return to status quo for the copyright owner. Usually7, an injunction or different types of remedies are sought in pair with the damages, or even the damages may be sought a sole remedy.
This thesis will be divided into five Chapters, which will subsequently be divided into
subchapters. Chapter I is the Introduction. Chapter II will highlight the issues typically encountered with online copyright infringement cases on the jurisdiction level. It will be mentioned how the CJEU has dealt with such cases previously to Pinckney and Hejduk and what approaches have been adopted. In other words, the state of the art before the selected rulings will be discussed. Chapter III will discuss the selected rulings and their implications, additionally it will address their reception in the legal doctrine. Arguments in favour and against the adopted approach will be summarized. Chapter IV will
7 Inbrief, 'Copyright infringement remedies' (InBrief.co.uk, 2016)
7 evaluate the solutions given by the Court, using the criterion of sufficiency and reasonableness, as well as internal criteria of the Brussels I Recast, such as predictability, legal certainty and sound administration of justice, as well as the possibility of increasing the overall standard of protection of copyrights in the EU. Additional measures at the substantive law and applicable law level will be discussed. Next, the argument will be placed in the context of larger implications of the chosen approach, such as the possible influence on the general level of protection and potential effect on the level of online piracy in the long term. In the Chapter V, the Conclusion, author will draw conclusions and summarize the line of reasoning presented. The research method employed will be normative with both evaluative and advisory approach and an internal perspective. The research will be based on the judgements and the juridical commentary, the acts of the PIL framework, as well as the relevant academic literature.
8
Chapter II. PIL framework and state of the art.
1.1 Jurisdiction.
PIL framework includes a set of legal rules concerning jurisdiction and applicable law in cases of cross-border copyright infringements in the EU. Applying them in instances of online copyright infringements may be considered more complicated. The fact that the acts in question take place online often increases the difficulty of the process of determining the outcome of applying the Framework. The reason for it may be that the previous definitions and legal mechanisms, made in times before the ubiquity of the Internet, may no longer be sufficient – e.g. the interpretation of a clause in one of the legal acts may not be suitable for this kind of infringements. As the subject matter of this thesis concerns such problem, it is necessary to begin with listing the typical issues concerning applying the PIL framework in cases of online copyright infringements, to ensure the coherency of the thesis. Afterwards, the state of the art will be presented – namely, how has these issues been resolved before Pinckney and Hejduk and what approaches were adopted.
Starting off with the first step in applying the Framework in such a case: determining the right jurisdiction. The Brussels I Recast, which is the relevant legal act that establishes rules on jurisdiction within the PIL in the EU, states that “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State”. The rule of domicile raises less significant difficulties of interpretation within the scope of the analyzed problem, from the PIL perspective. Typical difficulties may include the issue of determining the domicile of the allegedly infringing parties. Such problems, however, will not be the focus of this thesis. The alternative to the rule of the domicile, set up by Brussels I Recast, allows to sue in the place where “the harmful event occurred or is supposed to occur” - in other words, forum delicti. This provision proves to be more troublesome in application. The crux of the problem is the definition of the place of the harmful event. As practice has shown, determining the exact place of the harmful event or where it was supposed to occur can be difficult or open to interpretation in cases of online copyright infringements.8. For example, is the place of the harmful event the place where the infringing file was published ? Or the location of the server on which the infringing file was uploaded ? The chosen interpretation leads to different results and jurisdictions. Arguments can be made in favour of a number of choices. Brussels I Recast does not include precise guidelines in that matter, apart from general provisions such as Recital 13:
8C-170/12, Peter Pinckney v KDG Mediatech l EU:C:2013:635; CJEU case C-441/13, Pez Hejduk v EnergieAgentur NRW
9 “There must be a connection between proceedings to which this Regulation applies and the territory of the Member States. Accordingly, common rules of jurisdiction should, in principle, apply when the defendant is domiciled in a Member State.”
Recital 15, which requires the rules of jurisdiction to be:
“(…)highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile”
and Recital 16, which states:
“In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.”
This scarcity of detailed guidelines opens up a number of possible interpretations and may cause legal uncertainty. The CJEU and the legal doctrine have come up with different approaches in establishing
the proper answer to this problem9. An important notion must be brought up here – I will discuss the
chosen ruling and their innovative characteristic in contrast to the solutions previously advocated in the doctrine. The interpretation of Article 7(2) was not fully formed in the CJEU's case law (which will be explored later on), nevertheless, the legal doctrine presented a certain view on how it should be interpreted. As Pinckney and Hejduk cases have been chosen as a “turning point” in the interpretation of this provision for the scope of this thesis, it is necessary to first analyze the state of the art previous to theses judgements. Therefore, the next paragraph will shortly summarize the most important cases in
the previous years, in chronological order. Similar choice of cases was used in a number of texts10
concerning the interpretation of article 7(2) of Brussels I Recast; however it will be recalled in this fragment to provide basis for further analysis. The main focus will be on the methods applied by the Court and the changing approach to interpretation of the aforementioned provision in subsequent cases. In this context, the reader will be able to see the innovative aspect of the Pinckney and Hejduk cases, discussed in the next chapter.
9E.g. see European Max Planck Group on Conflict of Laws in Intellectual Property, 'The CLIP Principles and Commentary'
(Oxford, Oxford University Press, 2013);
10S. Depreeuw and J.B.Hubin 'Of availability, targeting and accessibility: online
10
1.2 Case law.
As it have been previously mentioned, the Brussels I Recast regulation does not provide clear answers on how to interpret the “place of the harmful event”. Therefore, the Court must choose an interpretation to this provision in related cases. Some examples of such choice can be found in two breakthrough11 cases: Bier12 case and Shevill13.
In the former, the Court ruled over a case concerning pollution of a river, allegedly caused in France and with effect in the Netherlands. In it, the Court stated that the “place where the harmful event occurred” should be interpreted as the place where the damage occurs, or, alternatively, the place of the event giving rise to it. This approach allowed the parties to file suits in both jurisdictions in such a case. The straightforward facts of the case enabled a direct application of this interpretation. This relatively simple method was further developed in the Shevill case ruling. The case concerned an article, deemed libelous, which was published originally in France and then distributed in the UK. The suit was brought in the latter, using the provisions of Brussels I. The Court ruling in this case introduced the “mosaic” principle of establishing jurisdiction. The method was to first seek jurisdiction of the place of the act causing the damage (in this case, France) and then of the countries where the damage occurred. (In this case, the countries where the plaintiff's existing reputation was damaged). An innovative notion of the Shevill ruling was also the limitation of the claim, related to the chosen jurisdiction. Only the courts of the country of publication might have ruled on full damages in this case, while the courts of the countries of distribution were limited to the damage that actually occurred in each country.
On the basis of these two rulings and the interpretation presented, the Court expanded its line of
reasoning in eDate Advertising14 case. The case concerned the publication of an article that infringed
on the privacy of two private persons via Internet. As the article was published online, the damage caused to the plaintiffs was argued to take place not only in the place of original publication, but in
many other countries. The eDate Advertising ruling is noted15 for pointing out the problems related to
the online character of the publication and the practical issues with applying the previous case law. The Court distinguished online publication from the regional distribution of printed media in terms of its
11Ib idem
12Case 21/76, Handelskwekerij Bier v Mines de potasse d’Alsace,
EU:C:1976:166
13C-68/93, Shevill and v Presse Alliance, EU:C:1995:61
14C-509/09 and C-161/10, eDate Advertising and others,, EU:C:2011:685. 15Also S.Depreeuw and J.Hubin 'Of availability, targeting and accessibility: online
11 ubiquity. It argued that because of the unlimited and instant access and easiness16 of further replication of the content, the exact place and amount of damage caused is hard to assess. The Court also argued that the current method of establishing the place where the damage occurred must be adapted. An innovative approach was to allow the plaintiff to sue for the entire damage in the place where his “centre of interest” was located. However, application of this principle is considered to be limited to the protection of personality right by most of the doctrine. It does, however, represent how the Court can change its interpretation of previously established principles to adapt to new challenges.
Even if the “centre of interests” principle cannot be applied in online copyright infringement cases, other findings of the eDate Advertising ruling can be useful for further reasoning. The Court reasoning leads to the conclusion that due to the ubiquity and universal access to the Internet, the damage could occur in virtually every Member State where the content was accessible. In effect, the courts of such Member State or States could hear the case, limited by the damage actually suffered there.
Another case, often discussed17 in the context of the CJEU interpretation of the “place of the
damage” is the Wintersteiger case. In it, the Court applied the art. 7(2) of the Brussels I Recast to online infringement of IP law. The factual basis of the case concerned a infringement of a trademark registered in Austria, which took place via a search engine that was designed for the German recipient. The jurisdiction matter was solved by first arguing that the place where the act originated was not the place where the server was installed. Instead, it was the place of 'activation by the advertiser of the technical process displaying, according to pre-defined parameters, the advertisement which it created for its own commercial communications’. In this case, this was ruled to be the place of the establishment of the advertiser. Alternatively, the place where the damage has occurred was to be the
place where the trademark was registered. This provided a limitation18 to the accessibility criterion
established by the eDate Advertising case, by the requirement of registration of the infringed right. Additionally, the Court emphasized that the 'center of interest' principle does not apply to alleged infringements of intellectual property law.
The limitation of the accessibility criterion in relation with other IP laws that do not require registration was not directly stated in the ruling. Although some scholars argued19 that it could also be applied to copyright infringement cases, using the country of protection instead of the country of
16Ib idem.
17Ib idem …, p.12 18Ib idem.
19
12 registration as the jurisdiction criterion. To support this idea, M.Bogdan proposed that in case of author's moral rights, author's centre of interest could be the criterion – he argues that moral rights bear enough resemblance to personality rights that the principle from eDate Advertising could have been applied.
At this point, the Court has not stated that the accessibility criterion can be applied to online copyright infringements. This would change with the Pinckney and Hejduk rulings. Before that, it can
be argued20 that mere access to the content would not constitute a basis for jurisdiction under the
Article 7(2) of Brussels I Recast. The Court seemingly dismissed21 the application of the mere
accessibility criterion to copyright infringements Such approach was in line with previous decisions of the Court and helped maintain a level of legal certainty. What is important, the eventual claim in the jurisdiction awarded, other than the domicile of the defendant, was limited by the amount of damage actually suffered in a chosen jurisdiction.
1.3 Summary.
In summary, in relation to the online copyright infringements, the 'problematic' issue of the PIL framework that is relevant for the topic of this thesis is the interpretation of the alternative set up in Article 7(2) of Brussels I Recast The state of the art before the Pinckney and Hejduk cases did not allow for a mere accessibility criterion, instead opting for the principle of other close connecting factors, which remained in line with the previous case law. The Court did not introduce a singular interpretation of the provisions of Article 7(2), however, certain patterns were observable. This led to the views of the legal doctrine, which rejected the mere accessibility criterion in cases of copyright infringements. A choice of such opinions will be discussed further. In this context, it should be clearer for the reader for which reasons the Pinckney and Hejduk could be considered to introduce innovative and unexpected, considering the previous case law of the CJEU.
20S.Depreeuw and J.Hubin 'Of availability, …, p.12 21
13
Chapter III. Relevant case law and commentary.
1.1. Pinckney ruling.
The first ruling that introduced an approach previously unexpected by the legal doctrine, for copyright infringement cases, was the ruling in case C-170/12, Peter Pinckney v KDG Mediatech AG. The case concerned a plaintiff from France, whose copyright was infringed by a defendant operating in Austria and aiming his business activity at the UK. However, the infringing content (CDs with illegal copies of songs, available for order online) was accessible in France. The plaintiff filed a suit in France, while the defendant raised the lack of jurisdiction of the French courts in this case. In light of the previous case law of the Court, discussed in the previous chapter, it would seem that the defendant's argument should be successful. However, the CJEU, unexpectedly, adopted a different approach. The Court ruled that the 'place of the damage' from Article 7(2) of Brussels I Recast can be interpreted as a place where the infringing content is accessible, therefore applying a ''mere accessibility” criterion to establish the jurisdiction. In effect, the French courts were awarded jurisdiction, limited however to the damage suffered (or potentially suffered) in the French territory. The approach of the Court in this case can be described as the ''access approach''. This change in line of reasoning was interpreted as a departure from the “intention to target” principle, adopted in previous case law. With the “intention to target” principle, the infringing activity had to be targeted at a certain audience, effectively on a certain territory. This constituted a close connecting factor, allowing to award jurisdiction. However, in Pinckney, the Court argued that article 5(3) (Article 7(2) in Brussels I Recast) establishes, as a sole22 condition, that the harmful event occurred or may occur on a territory in question.
Regarding the territoriality principle of protection of copyrights, which requires that a copyright must be protected under the law of a certain territory in order to seek protection there, the Court pointed out that, in line with the provisions of Directive 2001/2923, all copyrights are protected in the Member States by default. This approach of the Court bared resemblance to the methods applied in
cases of infringement of personality rights24, even though different subject matter prevents a direct
analogy.
22See E. Rosati, 'Brussels I Regulation and online copyright infringement: ‘intention to target’ approach rejected' ; (Journal
of Intellectual Property Law & Practice, 2014, Vol. 9, No. 1)
23Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information society [2001] OJ L 167.
24Also E. Rosati, 'Brussels I Regulation and online copyright infringement: ‘intention to target’ approach rejected' '; (Journal
14 Applying the mere accessibility criterion to online copyright infringement was a new solution proposed by the Court. As it was mentioned, the rulings made in previous case law led to vastly different interpretation of the Article 7(2), which was interpreted as the rejection of the criterion in copyright infringement cases. The ruling offered new possibilities for the parties of the dispute. . The plaintiff now could, theoretically, sue in virtually every Member State, as the content could be accessed anywhere. Unless the infringing content was subject to blocking based on a geographical position of a
recipient, commonly known as geo-blocking25. The same possibility materialized for the defendant,
which will be explored further. Still, the geo-blocking not the usual practice, so the decision of the Court opened up a number of new possibilities for both parties and, arguably, strengthened the position of the plaintiff measurably. It is worth noting that the argumentation of the Court was closely connected to the facts of the case, although the new principle was to be applicable to all further cases.
The decision of the Court was met with a lively reaction from the doctrine and drew a
significant amount of criticism. Some authors26 pointed out that the new approach can lead to an
increase in extensive forum shopping on behalf of the plaintiffs, who were previously considered to be restricted by the 'intention to target' principle. Additionally, it was pointed out that the decision seems inconsistent with the established case law of the Court and, due to that, some authors expressed27 hope that the Court would ''fix its mistake'' in the pending cases, among which was the Hejduk case.
What was interesting, the negative comments came also from the Advocate General, namely Advocate
General Jääskinen28, who argued that instead of the “access approach”, a “targeting approach” should
be utilized in the case in question. Opinions of the AG on the selected cases will be discussed in further part of the thesis, along with the reasoning behind the significance of AG's opinions to the doctrine and Court reasoning, as well the goals of this thesis. As the commentaries and critique of the ''access approach'' remained largely the same after the next ruling chosen, further arguments against the decisions will be discussed simultaneously.
1.2. Hejduk ruling.
Proving that the ruling in Pinckney case was not an isolated opinion of the Court, the same line
of reasoning was followed in the Hejduk29 case ruling. The case concerned a dispute between a
25European Commission, 'Geo-blocking' (Europa.eu, 3 July 2016)
<https://ec.europa.eu/digital-single-market/en/geo-blocking-digital-single-market> accessed 16 November 2016 .
26
R. Matulionyte 'Enforcing copyright infringements online: in search of balanced private international law rules'(6 (2015) JIPITEC) p. 14.
27Also E.Rosati, 'Brussels I …'
28C-170/12, Pinckney, Opinion of Advocate General Jääskinen, delivered on 13 June 2013, para. 73. 29
15 photographer, Ms Hejduk, and a German company, EnergieAgentur, who allegedly made Ms Hejduk's copyrighted photographs available on its website, without the authors consent or presenting the name of the author. The preliminary question again concerned the issue of interpretation of the “place where the harmful event occurred or may occur” from Article 7(2) and the Court again pointed to the “access approach” as the right answer. The decision of the Court effectively upheld the previously raised arguments and confirmed the line of reasoning from Pinckney.
Once again, the AG, this time Advocate General Cruz Villalón, criticized the stance of the Court and proposed another alternative: the “causal event” criterion, which will be explored further ahead. It
is worth mentioning that some scholars pointed out30 the unusual treatment of the Advocates Generals
in these two cases: the Court seemed to somehow “ignore” their opinions, or rather simply disagree with their arguments.
1.3. Case commentary.
The Pinckney and Hejduk rulings, as mentioned in the previous paragraphs, were met with instances of a critical reaction in the legal doctrine. Arguments against the adopted approach were given by a number of scholars, of which a short summary will follow. What is interesting, a negative stance was presented in relation to both rulings by the Advocates Generals. Considering the fact that their opinions are not legally binding for the Court, but in majority of cases,31 their opinions are in line
with the final judgement, this situation was considered surprising to some scholars32. The following
fragment of the thesis will shortly summarize the critique of the doctrine and the two relevant opinions of AG. Alternatives to the “access approach'' presented in the aforementioned opinions will also be discussed.
The crux of the critique aimed at the Pinckney and Hejduk rulings and the ''access approach'' was that adopting such method would allow to award jurisdiction to virtually every Member State's courts, as the infringing content would usually be accessible in each one of them. No targeting, no
further proof33 was necessary and it could possibly allow for extensive forum shopping by the parties
30
E.Rosati 'Luxembourg, we have a problem: where have the Advocates General gone?';(Journal of Intellectual Property Law & Practice, 2014, Vol. 9, No. 8).
31C.Arrebola, and others,, 'An Econometric Analysis of the Influence of the Advocate General on the Court of Justice of the
European Union' (Cambridge Journal of Comparative and International Law, Vol. 5, No. 1, Forthcoming; University of Cambridge Faculty of Law Research Paper No. 3/2016., January 12, 2016 ) <https://ssrn.com/abstract=2714259> accessed 16 November 2016.
32E. Rosati 'Luxembourg, we have a problem: where have the Advocates General gone?' (Journal of Intellectual Property
Law & Practice, 2014, Vol. 9, No.8).
33
16 of the dispute. In commentaries regarding both cases, it was argued that the adoption of such approach contradicts the principle of the “close connecting factor”, established in the previous rulings of the Court. Potential plaintiff could decide to sue in a MS where the legal system was most favourable to his purposes, e.g. the length or scope of the protection allowed to still sue, while in other systems the protection period would have already passed. The argument was raised in most of the work criticizing Court's decisions.
Additionally, the accessibility criterion was argued to deteriorate the legal certainty of the PIL framework and contradicting the principles of foreseeability and predictability of the Brussels I Recast Regulation, which contradicted the Recitals of the Regulation. The potential defendants, before Pinckney and Hejduk, could predict whether a given jurisdiction might be awarded, e.g. on the basis on the “intention to target” or lack thereof. As a result of the access approach, that was no longer possible. In practice, this could be too burdensome for the majority of defendants and result with a higher amount of lawsuits concerning online copyright infringements. Also, it raises the question of how does it affect the balance of interests of the parties to the dispute? As such, the adopted approach was deemed to work against the core goals of the Regulation. Considering the Recital 16 of Brussels I Recast, stating the goal of assuring the “sound administration of justice and the efficacious conduct of proceedings”, lowering the legal certainty and foreseeability of the framework would not serve that goal.
Regarding the opinions of Advocates Generals on the cases in question, the first relevant is the
opinion of AG Nilo Jääskinen34, delivered on the Pinckney ruling. AG disagreed with the Court's
interpretation of Article 5(3), citing similar arguments as mentioned previously. As to the admissibility criterion, he expressed a fear of “multiplication of the Courts” and the risk of forum shopping, additionally he cited the perceived deviation from previous case law on such matters. Opinion in question offered alternative solution for the case, namely that the Court should adopt the “targeting approach”, instead of implementing the mere accessibility criterion.
The basic concept of the “targeting approach” is to award jurisdiction to courts in the countries that were targeted, as in the conduct of the defendant was aimed at a specific audience in that country e.g. by use of suitable language or domain, or were otherwise substantially affected by the activity. That way, in comparison to the “access approach”, the potential number of jurisdiction that could be suitable is severely limited. Such approach could serve better the legal certainty and predictability of
34
17 the PIL framework. The potential infringers would more easily assess whether their activity may infringe on a legal system, if they knew that the activity is primarily targeted at a certain territory. Also, activity targeted at a specific country is more probable to have effects in its territory. Therefore, it allows both for a closer connecting factor to the dispute for the courts and to award restitution for
damages, if the damage occurred in the country. It has also been noted35 that the targeting doctrine
would allow for a better balance of interests of the right holders and potential infringers, as it limits the options of possible jurisdictions to sue in. Following on that note, the threat of forum shopping is also limited under the “targeting approach”.
Following the contrary stance of the opinion on the Pinckney ruling, the Hejduk ruling was also
met with a criticism of the AG. Advocate General Pedro Cruz Villalón36 was largely critical of the
upheld “access approach” of the CJEU in his opinion. One of his arguments was to limit the accessibility criterion of eDate Advertising to personality rights, as the previous case law (Wintersteiger) pointed to such limitation. Following the arguments of the previously discussed opinion, the AG cited that the mere accessibility criterion contradicts the principles of the sound administration of justice and the legal certainty of the proceedings. The argument he used was that the adopted method should point to a jurisdiction “close to the relevant facts of the dispute”. Once again, an alternative was proposed - the “causal event approach”. In this case, the rule would be to allow suing only in the jurisdiction where the infringing conduct originated37, that is where the “causal event” took place. The “causal event” would be interpreted as the act that initiated the allegedly infringing activity38. This way, as the place of such act would often coincide with the country of domicile of the potential infringer, such approach would simplify the proceedings even more.
As it has been mentioned previously, an interesting conclusion that can be drawn from the commentary written after the Pinckney ruling, but before the Hejduk, is that some member of the
doctrine39 seemed to expect the Court to not uphold the “access approach” in the latter. This
represented the idea that the Pinckney was an unexpected deviation from the previously established status quo – case law and resulting interpretation of article 7(2) of Brussels I Recast.
35
Ib idem.,p.9.
36Opinion delivered on 11 September 2014 (1); ECLI:EU:C:2014:2212. 37R.Matulionyte “Enforcing copyright...,p.13
38Ib idem. 39
18 The general reception of these rulings seemed to be unfavourable, or mixed at best. The “access approach” was a controversial stance for the Court, seemingly unexpected previously to Pinckney by the scholars.
1.4. Summary.
The general reception of the Pinckney and Hejduk rulings in the legal doctrine put a strong emphasis on the drawbacks of the Court's decisions. Fear of increase in forum shopping was a recurring argument40, as well as inconsistency with the previous decisions41 of the Court. The potential negative influence of the legal certainty of the overall system was also cited in some works, as well as the danger to sound administration of justice. An unusual part of the critique was that in both cases, the Advocates Generals expressed strong criticism of the judgements. In both cases, alternative approaches, stemming directly from the previous case law, were presented. This overall reaction could suggest that the Court's stance in Pinckney and Hejduk had no merit at all. However, I will later argue that the mere accessibility criterion was analyzed mostly in the context the negative implications associated with its use. In my opinion, a common trope among the voices of the critique was that they put too much focus on the fact that the new approach was largely contradicting the previously set rules, citing the risk of incoherency. While it might be true to some extent (which will also be discussed in a larger extent in the following chapter), this fault may somewhat clouded the judgement of the new approach. In spite of that, some scholars42 presented a more affirmative view of the Court's decision, citing potential benefits of the access approach and its practical requirements. This type of alternative views, as well as an analysis of the opinions of the AG in both cases will be discussed further, followed by an author's own view, aimed at putting the possible advantages of the “access approach” in a broader context of the effect on the level of protection of copyrights in the EU.
40K.Bercimuelle-Chamot 'Accessibility is the relevant criterion to determine jurisdiction in online copyright infringement
cases'; (Journal of Intellectual Property Law & Practice, 2015, Vol. 10, No. 6) ; also M. Husovec, 'Comment on ‘‘Pinckney’' ; (Max Planck Institute for Innovation and Competition, Munich published online 19 March 2014)
41Also in M.Husovec “Comment on “Pinckney”...”
42See R. Matulionyte 'Enforcing copyright infringements online: in search of balanced private international law
19
Chapter IV. “Access approach” as a solution ?
As the previously discussed reception of Pinckney and Hejduk rulings has proven, the Court's approach was considered by some members of the doctrine as a deviation from the previously established case law and therefore was met with some amount of confusion. This resulted in a number of papers, aimed to criticize the decisions, as well as two critical opinions of Advocates Generals. The main points of critique have been summarized already, and will be addressed in the following paragraphs. The aim of this analysis will be to present a comprehensive take on the subject matter, in order to highlight the advantages of the approach and explore potential disadvantages that have not been discussed as thoroughly yet. That will allow for further assessment of the value of the proposed approach and will place it in the context of effect it could have on the overall level of protection of copyrights in the EU. Furthermore, the assessment will include necessary remarks concerning issues on the level of substantial and applicable law that need to be addressed to supplement the “access approach”.
1.1. Addressing the criticism.
Having set up a structure of this chapter, I will start with a short analysis of the reasoning of the Court in Pinckney, which will shed some needed light on the context and arguments behind the decision. It is safe to assume that the members of the Court were fully aware of the previous case law at the moment they reached the decision in question, therefore they must have had some strong arguments in favour of their new approach. Next, I will use the same method to discuss the Hejduk case.
As a side note, it must be emphasized that the rulings in question were issued by the Fourth
Chamber of the Court and the same judges were involved. Typically43, if the CJEU decided to issue a
judgement that includes an innovative notion that leads to a vastly different outcome in the interpretation of EU law, the Grand Chamber issues the ruling. Here, it was not the case, therefore it could be argued that the proposed approach was not designed to revolutionize the interpretation of Brussels I Recast. Moreover, the decisions was reached by the same judges, which can also lead to the conclusion that it may not reflect the views of the Court in general. On the other hand, I would argue
43See C�117/15 Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v
Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) ECLI:EU:C:2016:109 –
important in the context of ‘making available’ and ‘communication to public’ interpretation, issued by the Grand Chamber; also C�362/14 Maximillian Schrems v Data Protection Commissioner ECLI:EU:C:2015:650 – in data protection.
20 that the rulings of the Fourth Chamber are not issued without proper reasoning and they still have a significant influence. Not only that, but also the fact that the “access approach” was somehow “confirmed” in a subsequent ruling, after Pinckney, offers some basis to conclude that it was not a mistake, nor a irregularity in the Court’s case law, but rather a conscious choice.
Coming back to the Pinckney ruling and its content, the Court did make some necessary distinctions, which separated the case from the previous case law. It underlined that the protected right
in question is not limited by territoriality in the same way as in Wintersteiger44 - in effect, the
protection is not limited by the registration, but instead, due to the provisions of Directive 2001/29/EC, the copyright is protected in every Member State.
The Court acknowledged the requirement of a particularly close-connecting factor45, which
adheres to the previously established rules and proves that the Court took that notion into consideration. Furthermore, the Court recalled the distinction46 between online infringements of personality rights and intellectual and industrial property rights, which resulted in the limitation of the eDate Advertising case accessibility criterion to the former. At this point of the Court analysis, another important distinction is made – the Court argues that the limitation does not concern online copyright infringements. The Court declares that the interpretation of the relevant provision of the “place where the damage occurred” and, therefore, the identification of the place where the harmful event giving rise to that damage occurred “cannot depend on criteria which are specific to the examination of the substance and which do not appear in that provision. Article 5(3) lies down, as the sole condition, that a harmful event has occurred or may occur.”
In result, the Court chooses a very literal interpretation of the provision, which allows it to use an interpretation previously not used in copyright cases. It explicitly states47 that there is no need to apply the “intention to target” principle in case of online copyright infringements. Moreover, the legal
scholarship48 on CJEU case law in different matters has established that the Court does not have to
conduct a comprehensive review of evidence in matters of jurisdiction, instead assuming the facts presented by the plaintiff to be correct, although it must take into account all information available, such as the allegations of the defendant.
44Par. 32, 33 and 39 of Pinckney. 45
Par. 27 of Pinckney.
46Par 35 of Pinckney. 47Par 42 of Pinckney.
48 Michael Bogdan, Concise Introduction to EU Private International Law (3rd edn, Europa Law Publishing 2016) 43, 48;
21 Distinctions made by the Court prove that the reached verdict was not supposed to exist in a vacuum, but rather be a deliberate “fine-tuning” of the interpretation of Article 7(2) of Brussels I Recast. The judgement recalled the conclusions reached in eDate Advertising and Wintersteiger, but then added new elements, designed with the EU-wide protection of copyrights in mind.
This approach was upheld in the following ruling on Hejduk. Despite the aforementioned critical opinion of the AG and the negative comments in the legal doctrine, the Court continued the line of reasoning presented in the previous case. Distinctions from previous case law were made, concerning the definition of causal event and the “intention to target” requirement. The remarks made in Pinckney were recalled and the same conclusion was reached. The mere accessibility criterion was deemed to be sufficient for awarding jurisdiction in the case in question.
The argument raised by the Court in cases and the way the new approach was set against the previous case law, by the distinctions made in both rulings, prove that the Court made a conscious decision of diverging from the previously established rules. The facts of the case and the subject matter of online copyright infringement led to a necessity of a different approach, resulting in the “access approach”. Nevertheless, the argumentation of the Court in both cases is relatively short and more context could have been given for the chosen solution, which would possibly address some of the issues that were immediately raised by the Advocates Generals and the legal doctrine. The judgements in question constituted a certain limitation to previous methods, as the targeting principle and the ‘causal event’ definition were no longer available for use in further cases. In practice, it was no longer easy to dismiss a potential jurisdiction on this basis.
The effect is the reason for the majority of the critique – the increase of amount of possible jurisdictions, which decreased the foreseeability and predictability of the system49 and the resulting risk of forum shopping by the plaintiffs. The incentives and process behind forum shopping has been discussed in many areas of European Private Law, as well as Private Law in general. The recurring
notion is that the risk of forum shopping should be mitigated by the state and EU legislators50
Additionally, the Court noted in the Hejduk ruling that:
49See R. Matulionyte 'Enforcing copyright infringements online: in search of balanced private international law
rules' (6 (2015) JIPITEC) p.4.
50 H. Koch, 'International Forum Shopping and Transnational Lawsuits' [2006] 31(31) The Geneva Papers (293–303) (293–
22 ‘The issue of the extent of the damage alleged by Ms Hejduk is part of the examination of the substance of the claim and is not relevant to the stage in which jurisdiction is verified.’51
This notion, while confirming a mere accessibility criterion, points to the potential consequences of the
“access approach”. The Court has however addressed that issue in the judgements, reminding52 that the
national court to which the jurisdiction would be awarded can determine only the damage within the MS it is located in.
It could be argued that in practice, the plaintiff (as a party who might benefit from it) would not make use of the full amount of potential jurisdictions to choose from, as usually only some of them offer the possibility of being awarded damages. Therefore, even if the mere accessibility criterion technically allows to sue in every MS where the infringing content is accessible, in reality it would be unreasonable to do that in a jurisdiction where the plaintiff expects to be awarder less or none damages at all. Of course, that still allows suing in many more jurisdictions than when using one of the previously applied criterions. Moreover, the same jurisdictions become available for the other party, which can also lead to its own set of issues, which will be discussed further on.
Other argument that can be made in favour of the adopted approach is the overall effect on the legal measures available to the potential plaintiffs in online copyright infringement cases. The possible options for the plaintiff are far more limited under different approaches that can be taken in the interpretation of Article 7(2). And, as I have argued in the first Chapter, the current state of affairs in online copyright infringements may require such change.
In particular, the targeting principle, despite having basis in the previous case law and the legal doctrine, may not be a particularly good “fit” for online copyright infringement cases. The reason for it is the lack of clarity in what exactly constitutes “targeting” in practical terms. This issue is mostly present at the substantive law level, however it should be discussed in the jurisdiction context, if we want to thoroughly analyze this alternative. As an example, if we would analyze a hypothetical case of a website that makes certain content accessible, e.g. pictures, that infringe on copyrights, there are certain criteria that can be used to argue the “intention to target” an audience, and in effect, jurisdiction.
In previous case law53, the language used on the website and domain were cited. One could also argue
51 Par. 35 of Hejduk. 52
Par. 45 of Pinckney.
53E.g.Joined Cases C-585/08 and C-144/09 Peter Pammer v. Reederei Karl Schlüter GmbH & Co KG (C�585/08), and
Hotel Alpenhof GesmbH v Oliver Heller (C�144/09), ECLI:EU:C:2010:740. The cases dealt with a different subject
23 that other features, such as payment option, available only in certain territories, could also be used. However, this approach may not always be suitable. Using the example given, let's assume that the website uses English as primary or only language option (which, due to its ubiquity in modern world, does not tell us much about the targeted audience), uses a kind of neutral or non-specific domain (.eu or .com) and does not offer payment options specific to a certain territory. A good example would be a platform similar to Tumblr, on which majority of users would repost content, with no indication of owner of the copyrights. The “intention to target” would not offer much use in such a case. Obviously, one could argue that the risk of infringements committed through such media is not significant enough to call for changes in law. However, I would expect the importance of such types of infringements to increase in the following years, as the sharing culture propagated by the social-media platforms becomes ubiquitous.
Therefore, the mere accessibility criterion, while less “specific” in a sense, can be a better solution for plaintiffs in cases as such. Better in a sense of allowing the plaintiff to sue in a chosen jurisdiction that offers the best chances of awarding damages, out of every potential available. Of course, the validity of this argument is dependent on the facts of the case. If the website in question was designed with a clear audience in mind (e.g. it was using Dutch language, an .nl domain and offered payment options specific to the Netherlands), the “access approach” can be argued to not offer substantial advantages to the plaintiff over the “targeting approach” in such cases. Still, the practical overall would probably be the same – the plaintiff, if he were to apply the provisions of Article 7(2) of Brussels I Recast, would probably sue in the Netherlands, as the Dutch courts would be suitable to award highest potential damages, due to the majority of damage taking place there. In the context of this conclusion, it is worth noting that the majority54 of content on the Internet is in English and it is a dominant language online. And, as a result, they are easily accessible from every MS, with less discernible targeting characteristics in play. For example, majority of Dutch websites offer English as a language of choice.
In effect, the decision of the Court to steer away from the previously established rules in the Pinckney and Hejduk cases may be necessary in order to allow for further efficiency of the proceedings in the online copyright infringement cases similar to the first example given. The choice between the potential jurisdictions available with the “access approach” allows the potential plaintiff (as well as the other party) to choose a jurisdiction with the biggest chance of “success”, in other words, the one that
24 may award the biggest amount of damages to him. This of course can lead back to the question of potential forum shopping. However, if we take into account that due to the territoriality principle, the amount of damages that can be awarded is limited to the damage actually suffered within the territory, we can safely assume that the most substantial amount can occur within a single or a limited number of territories. This way, while the access approach formally distances itself from the targeting principle, it still can lead to a similar outcome. And in addition, it allows suing in a certain jurisdiction where damage was actually suffered, even if the targeting per se cannot be clearly indicated, as in the discussed example, which arguably increases the overall standard of protection for the copyright owners.
Despite that advantage, it must be noted that there can be abuse of the system adopting the mere accessibility criterion. If the plaintiff would happen to be large, multinational entity, with enough financial substance for a sizeable legal action, it is possible that, in a case where the mere accessibility criterion leads to multiple jurisdictions, the plaintiff in question would choose to sue in every possible one, using a tactic that could be described as a sort of legal “carpet bombing” - aimed at intimidating and overwhelming the potential infringer with multiple lawsuits. This is a serious risk in case of the adoption of the “access approach”. Nevertheless, the question is, how should the potential advantages and disadvantages of the approach be viewed and what the overall assessment should be. I would argue that even while the risk of forum shopping is a significant issue with the “access approach”, it might be partially mitigated by the limitation of damages the court could actually award and the “pragmatic” (as in choosing only the jurisdiction in which there is a chance of winning) approach of the potential plaintiffs. Moreover, this risk might be mitigated by the fact that it still would be easier for the plaintiff to sue in line with the general rule of Brussels I Recast – in the defendant's domicile, where the court could rule on cross-border damages55.
Another argument given against the adoption of “access approach” is the danger of a lower level of legal certainty. This criterion stems from Recital 16 of the Regulation. According to this line of reasoning, the alternatives to the “access approach” allow for more predictable outcomes of the proceedings, mainly because the amount of potential jurisdictions is much lower. This point of critique has some value to it, as it is true that the accessibility criterion allows for a biggest variety of outcomes.
The copyright infringer can no longer reasonably expect56 the potential lawsuit to be filed within a
55See R. Matulionyte “Enforcing copyright infringements online: in search of balanced private international law
rules” (6 (2015) JIPITEC) p.7.
56
25 certain jurisdiction, e.g. where the website on which it was accessible was targeted. However, as it was discussed in the previous paragraph, the jurisdiction that the potential plaintiff might choose can still be expected with some degree of certainty – it will be the jurisdiction in which he suffered, or he expects to have suffered the majority of the damage. And if, due to not specifically targeting the website to a certain territory, the infringer cannot expect where the damage actually took place, I would argue that he must acknowledge the risk of causing damage in any of them and subsequently, entering into a legal proceedings. This stance of course can be argued to tip the balance significantly in favour of the copyright owners, however I think it is a necessary shift in the balance of interests. I will justify this stance to a larger extent in the further part of this chapter, after addressing the rest of the arguments against the “access approach”
Furthermore, it must be noted that, even if the Court recalled the “close-connecting factor” as a principle in establishing jurisdiction in such cases in the Pinckney ruling, it is unclear57 whether it can be followed with the adoption of “access approach”. The accessibility of the infringing content is questionable as a close connection. The other approaches to interpretation of the provisions of the Article 7(2), such as the targeting approach, offer a far simpler solution, as the requirements are clearer. In that aspect, the Court's decisions did not offer many guidelines into the matter. This constitutes a certain drawback to the “access approach”, however it is worth underlying that the issue at hand is not the total lack of a connection, but rather a lesser degree of it than in the alternatives.
Interestingly, a potential disadvantage that was not discussed as vividly as the other arguments
is the risk of “torpedo actions”58 under Brussels I Recast, which, with the application of a mere
accessibility criterion, could be launched by the potential defendant as a way to “sabotage”59 the
incoming lawsuit. The provision that allows for such actions is Article 29 of Brussels I Recast (previously, Art. 27 of Brussels I), which establishes a lis pendens rule.
Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
57See R. Matulionyte “Enforcing copyright infringements online: in search of balanced private international law
rules” (6 (2015) JIPITEC) p.5.
58
C. Rehse, 'The ‘torpedo’: recents developments in Europe' (Intellectualpropertymagazine.com, 12 May 2014)<http://www.intellectualpropertymagazine.com/strategy/the-torpedo-recent-developments-in-europe-99631.htm?origin=internalSearch> accessed 31 December 2016.
59 M. Giannino, ‘Italian torpedo actions can sink crossborder
26 Due to this provision, an infringing party can file a suit to receive a decision of non-infringement, by filing60 for a declaratory judgement or an action for non-infringement. This way, if the party chooses to file such a suit in a jurisdiction which is well-known for lengthy proceedings, the whole process and the potential lawsuit of the actual right holder can be stalled. Typically, such actions
were popular61 in patent disputes and the Italian jurisdiction was often chosen. Despite critique, the
torpedo actions are not prohibited explicitly in any Member State. As it has been observed in the context of patent law, the torpedoes can become a significant issue that undermines the purpose of cross-border copyright protection and allows infringers to avoid liability in an easily accessible way. The possibility of use of torpedo actions in copyright disputes is still unclear, as there is little case law in that matter. However, the application of the torpedoes in such cases would become much easier under the “access approach”, as the multiplication of courts available would also apply to the potential defendant,
If the use of torpedoes would become common in copyright proceedings, the potential advantages of the “access approach” would be severely limited. The copyright infringers would gain a useful tool for abusing the vast choice of jurisdictions available for their own benefit. This could become a serious issue in the use of “access approach”, that has not yet been covered extensively in the legal doctrine. However, it may be a major argument against adopting the “access approach”. The solution for mitigating the risk of torpedo actions would be to prohibit the clearly abusive use of the lis pendens provision, however, as practice has shown62, such regulations would be difficult to implement.
As it seems, the “access approach” is not the perfect answer for every issue that may arise in the process of establishing jurisdiction for online copyright infringement cases. Still, some of the arguments against it, presented in the legal doctrine, might have been too far reaching, ignoring the advantages it could bring. On the other hand, the problem of potential of torpedo actions under Article 29 was somewhat underestimated. To achieve the full overview of the issue, I will now proceed to further analysis of the arguments presented by the Advocates Generals in their aforementioned opinions.
1.2. Further discussion on the Advocates General's alternative propositions.
As it have been previously established, in both cases, the opinions given by the Advocates Generals were critical of the approach adopted by the Court. The fact that the Court remained firmly by60 Also C. Rehse, ‘The ‘torpedo’…”, p.76. 61 Ib idem.
62
27 its chosen stance proves that the arguments raised by the AG s did not convince the Judges.
Nevertheless, it is necessary to discuss in detail the opinions in question, not only because of the aforementioned status of the Advocates Generals, but also due to the possible alternatives, presented in each. The discussion about their potential advantages and disadvantages may be helpful for a fuller assessment of the value of the “access approach”. Additionally it will allow for a better understanding of the Court's stance.
Starting off with the opinion of Advocate General Nilo Jääskinen on Pinckney63, first he
discussed64 the issue of inadmissibility of the claims, which was the crucial point of critique in the
opinion, however he also addressed the possible problems with the interpretation of article 5(3) of Brussels I, relevant to the topic of the thesis. The AG argued that the “targeting principle”, in part “inspired”65 by the provisions on the level of substantive law, should be applied in the case in question, in line with the Football Dataco66 case. He argued that the interpretation of the “targeting principle”, or
in other words, the focalisation criterion, should be derived from the Pammer67 case. An interesting
notion68, raised by the AG was that, technically, that method would lead to awarding the jurisdiction to a specific national court, which contradicts the idea that the damage was “nationwide” in scope and therefore all national courts should be eligible – he pointed for internal norms for possible solutions on
that subject matter. Furthermore, he criticized69 the “access approach” on the basic of potential
multiplication of courts, leading to an increase of forum shopping. Lastly, he rejected70 the application of the “centre of interests” principle from eDate Advertising to copyright infringement cases.
The arguments of the AG have already been partially answered in the previous paragraphs, however it is worth further discussing the proposition of adopting the “targeting approach” in the case. The “targeting approach” may have its own issues, as it has been mentioned, due to the unclear definition of “targeting”. What actions would constitute targeting a country and its user base and which would not? What are the deciding factors: language used, domain, disclaimers or advertisements or other? As I have discussed in context of the possible advantages of the “access approach”, the use of the targeting principle to solve jurisdictional issues does not offer simple answers in cases that are not “clear-cut”, in other words, where the facts of the case do not allow for a simple assessment of the
63
Opinion delivered on 13 June 2013 (1) on C-170/12 ; ECLI:EU:C:2013:400
64Par. 23-27 of the Opinion. 65Par. 64 of the Opinion. 66
C-604/10 - Football Dataco and Others v Yahoo! UK Ltd and Others; ECLI:EU:C:2012:115
67Par. 66 of the Opinion. 68Par. 67 of the Opinion. 69Par.68 of the Opinion. 70
