As an online retailer based in the UK, you might think that you can only be sued for copyright infringement within the UK courts and under UK law. Indeed, the general rule under European Union law is that people and businesses should be sued in the Courts of their own country.
A preliminary ruling from the European Court of Justice (ECJ) has however cast this into doubt.
The case concerned the sale of an audio CD, manufactured in Austria and offered for sale by two UK companies via the internet.
A resident of France claimed that the audio CD contained songs written, composed and performed by him and issued copyright infringement proceedings in France against the Austrian manufacturer and both UK companies.
The claimant was relying on one of the exceptions to the general rule on jurisdiction – that in relation to certain types of action, people and businesses can be sued in the Courts of the country where the harmful event occurred or may occur.
The legal question
If the audio CD was indeed infringing the claimant’s copyright, then it was clear that the manufacture in Austria gave rise to a harmful event, as did the subsequent offering for sale within the UK.
However, the claimant sought to argue that simply because he could access the UK websites and order the CD from within France, a further harmful event arose within France.
As the question of jurisdiction rested on interpretation of EU law, the French Court asked the ECJ to give a preliminary ruling.
The ECJ ruled that the accessibility of the websites from within France did indeed give rise to a harmful event and the French Courts could therefore hear the claim.
Furthermore, there was no need to demonstrate the websites were targeting consumers in France (which is required for trade mark infringement claims); the mere accessibility within France was sufficient on its own.
The ECJ did however stress that the Courts in an EU country can only determine the damage caused within that country – if a potential claimant has suffered losses in different countries he will need to sue separately in all those countries.
Consequences of this ruling
If you are an online retailer within the UK and you are selling any goods or materials that infringe copyright in other countries of the EU (even if they do not infringe copyright under UK law) you could find yourself subject to infringement claims issued in the Courts of other EU countries.
It will not be a sufficient defence to argue that you don’t target sales at those countries: unless your website makes clear that you do not ship to those countries then you could be liable.
Matt Worsnop is an Associate Solicitor at BHW Solicitors in Leicester and writes regularly on intellectual property matters. Matt can be contacted on 0116 281 6235 or by email at firstname.lastname@example.org.