I reported just short of a year ago on the reference in Pinckney, Case C-170/12. The Advocate General opined on 13 June. Jääskinen AG first of all suggests the questions are inadmissible – let’s hope the ECJ will not agree for this will cut short the remainder of the discussion.
Pinckney, a resident of Toulouse (France), is the alleged author, composer and performer of 12 songs which were recorded on vinyl in the 1970s. The works have been copied in Austria, unto CD by Mediatech, registered in Austria. No permission was requested from Pinckney. Two UK-registered companies subsequently marketed the CDs from a variety of websites, which were accessible from Toulouse.
The AG distinguishes between two different infringements – both with ample reference to previous case-law:
Firstly, for reproduction rights, he suggests the locus damni is the same as the locus delicti commissi: for there is no third party involved. In the case at issue, this leads to both the UK (were the songs were copied on a host server) and Austria (where the copies were initially made) as having jurisdiction.
Further, for distribution and communication rights, the locus delicti commissi in the AG’s view, is the place where the infringers are established: the place of upload of the online content, and the place where the online offer of the CDs was decided. The locus damni is identified by the AG with reference to L’Oreal for trademarks, and to Football Dataco for database rights. The ‘targeting’ of consumers and the ‘focus’ of a website are determinant in the view of the AG (in the case of diffuse focus and target, leading to limited jurisdiction per the Shevill rule: jurisdiction only for the damage occurred on that territory). Mere accessibility of a site, ought not to be withheld in the view of the AG. Neither and importantly, the criterion of ‘centre of main interests’, withheld by the court in e-Date Advertising for the infringement of personality rights, and already rejected by the court in Wintersteiger for the infringement of trademarks: damage stemming from copyright infringement, the AG suggests, is not inherently related to the place of the copyright owner’s centre of interests.