## Facts

- Peter Pinckney, a French resident, claimed copyright in 12 songs recorded in 1971.
- KDG Mediatech AG, established in Austria, allegedly reproduced the songs on CDs in Austria without authorization.
- The CDs were marketed by companies established in the United Kingdom through websites accessible in France.
- Pinckney could order the CDs online and have them delivered to his home in Toulouse, France.
- Pinckney sued Mediatech in the Tribunal de grande instance de Toulouse seeking damages for copyright infringement.
- The trial court found French jurisdiction based on the ability to purchase and deliver the CDs in France; the appellate court reversed, finding no French jurisdiction because the defendant was domiciled in Austria and the damage was not located in France.
- The Cour de cassation referred questions to the Court of Justice of the European Union on interpretation of Article 5(3) of Regulation (EC) No 44/2001 (Brussels I).

## Issues

1. Under Article 5(3) of Regulation (EC) No 44/2001, may a copyright holder sue in a Member State’s courts as the place where damage occurred when allegedly infringing goods are offered online and can be delivered there, even if reproduction occurred in another Member State and marketing was done from a third Member State?
2. If such jurisdiction exists, is it limited to determining only the damage suffered within the forum Member State?

## Decision

- The court held that Article 5(3) permits jurisdiction in the Member State whose courts are seised when the allegedly infringed copyright is protected there and the infringing CDs are accessible for purchase and delivery there.
- The court held that jurisdiction based on the place where damage occurs is limited to determining damage caused within the forum Member State.
- The court rejected an inadmissibility objection and answered the referred questions, leaving application to the referring national court.

## Legal Principles

- Article 5(3) special jurisdiction in tort allows suit in the courts of the place where the harmful event occurred or may occur, covering both (a) the event giving rise to damage and (b) the place where damage occurs.
- For copyright, the place where damage occurs may be any Member State where the right is protected and the alleged infringement produces effects there (including through online sales enabling delivery).
- A “targeting” requirement is not a precondition for copyright jurisdiction based on the place where damage occurs; accessibility of the offer and the ability to obtain the infringing copies in the forum, coupled with local protection of the right, can suffice.
- When jurisdiction is grounded on the place where damage occurs, the court’s competence is territorially limited to harm occurring in that Member State.

## Conclusion

The court ruled that a Member State’s courts may hear a copyright infringement claim against an out-of-state manufacturer when infringing copies are sold online in a manner allowing purchase and delivery in that State, but the court may award relief only for damage suffered within its own territory.


Pinckney v. KDG Mediatech AG, Case C-170/12 (C.J.E.U. 2013)