Authors: Ornella Feraci
The paper explores the approach of the European Union Private International Law (EU PIL) to the allocation of jurisdiction among Member States in relation to cross-border online copyright infringements. The advent of the Internet has given rise to new challenges for PIL. The cyberspace calls for clear rules aimed to determine which national court may exercise jurisdiction over a cross-border online copyright infringement. Taking the EU law response to such challenges as a case study, the essay describes the relevant jurisdictional rules laid down in Regulation (EU) No 1215/2012 (Brussels I-bis). Secondly, the paper examines the recent Pinckney and Hejduk cases, where the Court of Justice of the European Union (CJEU) attempted to adapt the special forum of former Article 5(3) of Regulation (EC) No 44/2001 (Brussels I) - now Article 7(2) of Brussels I-bis Regulation - to the peculiarities of online copyright infringements. The Author criticizes the solutions achieved by the CJEU, stressing, in particular, the risks of adopting the accessibility criterion as a general ground of jurisdiction for violations committed through the Internet. The study shows that the special jurisdictional rule of locus commissi delicti is not suitable for online infringements. For the purposes of foreseeability and legal certainty, it would be desirable to shift from a CJEU’s case-by-case approach to a comprehensive and coherent legislative framework. The Author concludes that it is time for the EU legislator to include in Brussels I-bis Regulation a special jurisdictional rule for all types of online torts. The new provision should be inspired by the proximity principle, in order to overcome the difficulties arising from the localization of the locus delicti within the cyberspace.
Keywords: jurisdiction, EU Private International Law, online copyright infringements, locus commissi delicti, torts, Brussels I-bis Regulation.