France: Pinckney, the case continues as Supreme Court formulates its position

27 January 2014

On 22nd January 2014 the Cour de cassation issued a significant ruling concerning the jurisdiction of the French courts with regard to violation of Intellectual Property rights on the Internet (n°10-15.890 – http://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/33_22_28276.html).

This decision follows on from the Pinckney ruling handed down by the Court of Justice of the European Union on 3rd October 2013 (C -170/12 - http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d55a155f6d90c64016940dc70cd8b1a934.e34KaxiLc3eQc40LaxqMbN4OaxiTe0?text=&docid=142613&pageIndex=0&doclang=fr&mode=lst&dir=&occ=first&part=1&cid=667063).

For the record, a French resident noted that CD’s pressed in Austria by an Austrian company were being offered for sale on a website published by British companies, and which it is possible to access from France. He stated that musical works, of which he is the author, were reproduced on said CD’s without his permission. He brought action before the Tribunal de grande instance de Toulouse [Toulouse District Court] against the Austrian firm, for infringement of his copyright.

The Cour d’appel de Toulouse stated that it lacked jurisdiction. The Cour de cassation, ruling on appeal, stayed the proceedings and referred a question for preliminary ruling to the Court of Justice.

The court was requested to rule whether mere accessibility to a site from the territory of a Member State is sufficient to trigger jurisdiction in said State, or whether, in addition, said content was required to be intended for the public of said Member State, or another connecting factor demonstrated.

The Court of Justice responded that Article 5-3 of (EC) Regulation n°44/2001 should be interpreted as meaning that mere accessibility is sufficient.

Unsurprisingly, the Cour de cassation applied this solution in a very clear ruling: ʺaccessibility to a website marketing the CD alleged to be in infringement within the area of jurisdiction of the court applied to is such as to justify the jurisdiction of said court, as that of the place where the alleged harm was realisedʺ.

The Supreme Court has thus confirmed the criteria of ʺaccessibilityʺ of a foreign website as the basis of jurisdiction of the French courts.

This solution, handed down in a case concerning copyright, should be capable of being transposed to cover all Intellectual Property rights.

These decisions, which significantly widen the jurisdiction of the French courts will, undoubtedly, cause an increase in litigation concerning the Internet.

Whilst the question of jurisdiction thus appears to be settled, that of violation of rights on the French territory remains to be dealt with, particularly since in this case, the sole entity against which action is brought is the one at the origin of the reproduction, and not that distributing the product in question.