Enforcing Copyright Infringements Online: In Search of Balanced Private International Law Rules

• Author: Rita Matulionyte
• Position: Dr., LL.M., lecturer at the University of Newcastle (Australia); associated research fellow at he Law Institute of Lithuania
• Pages: 132-145

2015

Rita Matulionyte

132

1

Enforcing Copyright Infringements Online

In Search of Balanced Private International Law Rules

by Rita Matulionyte, Dr., LL.M., lecturer at the University of Newcastle (Australia); associated research fellow at

the Law Institute of Lithuania

© 2015 Rita Matulionyte

Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Rit a Matulionyte, Enforcing Copyright Inf ringements Online:In Search o f Balanced Private

International Law Rules, 6 (2 015) JIPITEC 132, para 1.

Keywords: Copyright Enforcement; Targeting Doctrinde; Copyright Violations; Lex Loci Protectionis

the Pinckney and Hejduk cases and argues that the

“access approach” that the Court adopted for solving

jurisdiction questions could be quite reasonable if it

is applied with additional legal measures at the level

of substantive law, such as the targeting doctrine.

Secondly, the article explores the alternatives to the

currently established lex loci protectionis rule that

would enable right holders to get EU-wide remedies

under a single applicable law. In particular, the

analysis focuses on the special applicable law rule for

ubiquitous copyright infringements, as suggested by

the CLIP Group, and other international proposals.

Abstract: Enforcement of copyright online

and fighting online “piracy” is a high priority on the

EU agenda. Private international law questions

have recently become some of the most challenging

issues in this area. Internet service providers

are still uncertain how the Brussels I Regulation

(Recast) provisions would apply in EU-wide copyright

infringement cases and in which country they can

be sued for copyright violations. Meanwhile, because

of the territorial approach that still underlies EU

copyright law, right holders are unable to acquire

EU-wide relief for copyright infringements online.

This article first discusses the recent CJEU rulings in

A. Introduction: IP, PIL

and the Internet

1

With the emergence of the Internet, the

enforcement of cross-border intellectual property

(IP) infringements has become highly relevant,

especially in the area of copyright law. With the

prevalence of online copyright “piracy”, the efcient

enforcement of copyright has proven to be an

especially challenging task for both the legislators1

and the courts.2 Private international law (PIL)

issues raise some of the most difcult questions

in this area. First, it is necessary to decide which

court has jurisdiction in EU-wide (and worldwide)

copyright infringement cases online. Secondly, once

the court jurisdiction is established, one needs to

determine which law the court has to apply when

establishing EU-wide infringement and granting EU-

wide remedies. The currently applicable EU Brussels

I Regulation (Recast) allows infringers to be sued

either in the place of the defendant’s domicile or in

the place of the harmful event.

3

However, it does not

specify where the “harmful event” is supposed to

occur when copyright infringement is taking place

online. With regard to the applicable law, the EU

Rome II Regulation subjects copyright infringement

to the law of the country “for which protection is

claimed”.

4

This so called “lex loci protectionis” rule

means that national copyright law applies only

in respect of infringement occurring inside the

territory of a particular state. Therefore in order to

get EU-wide remedies, the copyright laws of each

EU Member State (currently, 28 such laws) would

need to be applied.

2

The CJEU has recently claried some of the PIL

issues relevant to cases of copyright infringement