In particular, the CJEU was asked to balance several fundamental rights in actions against online intermediaries for copyright infringements committed by third parties. In SABAM v. Scarlet (case C-70/10; see also SABAM v. Netlog, case C-360/10), the CJEU defined the outer limits for “injunctions against intermediaries whose services are used by a third party to infringe a copyright or related right” (Art. 8(3) of the 2001/29 Copyright Directive). On 27 March 2014, the Court of Justice in UPC Telekabel (case C- 314/12) went further in delineating the requirements for copyright injunctions against online access providers and the implementation of filtering measures.

In the last years, the ECtHR ruled three times on the proportionality of some interferences with the freedom of expression online resulting from the protection and enforcement of copyright. One case (Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden, 18 Febr. 2013) involves the operators of the infringing website The Pirate Bay. In Ashby Donald v. France (10 Jan. 2013), the question was whether the sanctions imposed by the French courts on the managers of a website containing photographs of fashion shows were passing the test of proportionality for restricting freedom of expression. In a March 11, 2014 decision (Yaman Akdeniz v. Turkey), the ECtHR considers as inadmissible the request made by the user of musical websites to which access has been blocked.

Here are a list of questions for you to consider at the light of (at least) the two decisions UPC Telekabel and Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden:

• What are the fundamental rights that are most often referred to by the Court in Luxembourg and by the Court in Strasbourg?
• Is Article 10 of the ECHR applicable to the Internet in the same way as it is applicable to other means of communication?
• Does the protection of property as a fundamental right play a role in the balancing made by the CJEU and the ECtHR?
• Is it possible to rely on other fundamental rights to support the view that copyright is a fundamental/human right?
• Do you see a difference in the way the balancing is done by the CJEU and the ECtHR?
• What are the implications of a reasoning based on the balancing of fundamental right?
• As a result of those decisions, does copyright move from the sphere of private law to the realm of public law?

You do not necessarily have to respond to all those questions, you can select a few of them. What is important: your text should be concise, well-structured and to the point. Also it should flow well.

You do not have to be too … balanced in your response!

(You might as well take into account this additional question: Do you think the decision Akdeniz is completely in line with the previous case law of the ECtHR?).

As  readers will promptly recollect, this case concerned interpretation of Article 5(3) of the Brussels I Regulation in the context of alleged online copyright infringement cases.

The questions referred by the French Court of Cassation read as follows:

1.      Is Article 5(3) of … [the Regulation] 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,

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?

2.      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?

The CJEU replied that Article 5(3) must be interpreted as meaning that, in the context of an action for alleged copyright infringement brought following unauthorised reproduction and online distribution of copies of a work, the courts of a particular Member State have jurisdiction to establish liability and award the damages occurred therein, if the website through which the infringing copies are distributed is accessible from that territory.

As Advocate General (AG) Jääskinen acknowledged in his Opinion (here), Pinckney was the first case concerning the criteria for localising the place where the damage occurs in the event of an alleged online infringement on an unregistered IP right.

In reaching its decision, the CJEU departed significantly from the Opinion of the AG. In doing so, it also marked a discontinuity from recent case law (notably, Joined Cases C‑585/08 and C‑144/09 Peter Pammer, Case C-5/11 Titus Donner (here), and Case C-173/11 Sportradar (here and here) which employed the notion of ‘intention to target’ in the context of online infringements. The stance taken by the Court is not particularly shocking, as departure from the ‘intention to target’ approach may be justified on consideration that (as recalled by the Court itself) “Article 5(3) lays down, as the sole condition, that a harmful event has occurred or may occur.”

Following the decision in Pinckney, the jurisdictional treatment of alleged online copyright infringements is more akin to that of alleged breaches of personality rights, rather than registered IP rights. This conclusion re-states the approach taken following the 1994 decision in Case C-68/93 Fiona Shevill with the additional result that the principle of territoriality, which still governs (is supposed to govern?) copyright, appears significantly diluted, at least in relation to the special rule of jurisdiction laid down in Article 5(3) of the Brussels I Regulation.

The criterion of accessibility eventually adopted by the CJEU was rejected by the AG, on consideration that it “would encourage forum shopping, contrary to the case law of the Court, which has consistently attempted to curb that risk in its interpretation of Regulation No 44/2001.” This fear appears exaggerated, especially considering that a national court will be able to award only the damages occurred in the territory of that particular Member State.

In line with other recent decisions (eg the twin decisions on ISP filtering Case C-70/10 Scarlet and Case C-360/10 Netlog, on which see here, here, here), also in Pinckney the actual response of the Court was overly fact-specific:

While there is little doubt that its meaning ought to be intended broadly, it is questionable whether the last word on jurisdiction in cases of alleged online copyright infringement has yet been said.

Similarly to another reference for a preliminary ruling concerning filtering and currently pending before the CJEU (Case C-314/12 UPC Telekable Wien, on which see here), it is not excluded that new references on jurisdiction in online copyright infringement cases will flourish.

There is no need to think too far ahead in the future, though.Case C-441/13 Pez Edjduk (on which see here) is currently a reference for a preliminary ruling from Austria which seeks clarification on the interpretation of Article 5(3) in the context of a case of alleged online copyright infringement. The question referred by the national court is centred around the (now infamous) notion of ‘intention to target’ … Does that mean that ‘intention to target’ is dead, long live ‘intention to target’?