CAMBIO
Escrito por: Marcelo Corrales

Battling the “Territoriality” Principle

The principle of territoriality has been subject of many controversies. In the field if Private International Law and Intellectual Property, this principle is related to the sovereignty of the countries to regulate within the boundaries of that state. This principle has been crystallized in numerous conventions such as the Bern and Paris Conventions. The Brussels I Regulation has also been at the center of many discussions regarding Intellectual Property Rights infringement over the Internet.  According to Article 5 (3) of the Brussels I Regulation, a person domiciled in a Member State may be sued in another Member State in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful events occurred or may occur.

As it will be shown in light of the case Pickney v Mediatech AG (the “Pickney” case), the territoriality principle is being challenged by the rise of cross-border transactions, globalization and the upsurge of the Internet. This decision represents a landmark in cases dealing with copyright infringement on the Internet since copyright owners may now submit a complaint before a court of a European Member State where the “infringing contents are made available” to the public and “it will not be necessary for copyright owners to show that a website’s activity is targeted at Internet users of the Member States of the courts which they seized.”

In this case, a French resident living in Toulouse, France (Mr. Pinckney) claimed damages resulting from the copyright infringement of 12 songs recorded by his group, Aubrey Small. The defendant, Mediatech AG (a company established in Austria), allegedly recorded his album on a CD and reproduced it without his consent.  They then sold it through two UK companies, Crusoe and Elegy, as their own. The albums were accessible from Mr. Pinckney’s residence in France through numerous websites.

Mr. Pinckney filed a complaint before the Regional Court of Toulouse; however, Mediatech claimed that French courts had no jurisdiction to hear the case. Mediatech’s plea was dismissed by the French court based on the fact that the CDs were accessible in France. Therefore the French public, including Mr. Pinckney, would have been able to buy them online, and this was enough to establish a “substantial connection between the facts and the alleged damage.”

Mediatech appealed this decision claiming that the CDs were “pressed” at the headquarters in Austria on behalf of the UK company. They argued that the case should be brought before courts in Austria and the UK; i.e., the domicile of the defendant and the place where the damages occurred, respectively. In 2009, the Court of Appeals of Toulouse ruled that the Regional Court of Toulouse had no jurisdiction to decide on this case.

Mr. Pinckney appealed against this judgment alleging Article 5 (3) of the Brussels I  Regulation, thus claiming that the French courts had jurisdiction. The Court of Cassation decided to hold the procedure and submit the following questions concerning Art. 5 (3) of the Brussels I Regulation to the Court of Justice of the European Union (CJEU) for its preliminary ruling:

  • “Does the person who considers that his rights have been infringed have 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 of the court before which the action is brought”? or;
  • “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?”

The CJEU ruled in favor of the plaintiff and decided that the French courts were competent based on the grounds that there was a “likelihood of the harmful event arising in a territory” (France) where copies of the CDs were also available through websites.

The advantage of the interpretation of this case is that it represents a win in the battle for the principle of territoriality. However, the problem is that this ruling might aid “forum shopping” as it provides more choices for copyright owners to decide which court might be more convenient for them. The other disadvantage is that this may not be the most practical approach for copyrights as copyright owners may now need to seize jurisdiction in every country where the harmful event occurred.

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