Eleonora Rosati's Presentation for IPKat event 'Online Copyright + Enforcement = Happiness?', held in London on 1 April 2014

1. Copyright Enforcement in the EU
Review Plans in the Shade of CJEU Blooming Activism
Eleonora Rosati
Online Copyright + Enforcement = Happiness?
London, 1 April 2014

2. Contents
• EU copyright (enforcement) reform debate
• Enforcement & the CJEU
• Where: (Apparent) extension of possibilities for acting in
respect of alleged online infringements
• What: Filtering and blocking injunctions
• Who: A matter of exception?

3. Is EU enforcement framework about to change?

4. The past few years • 2011 IPR Blueprint
• Forthcoming review of Enforcement Directive
(Spring 2012)
• 2012 Communication on Content in the
Digital Single Market
• Decision in 2014 whether to table reform
proposals on enforcement
• 2013 Public Consultation on the Review of
EU Copyright Rules
• Should the civil enforcement system in the EU
be rendered more efficient for infringements of
copyright committed with a commercial
purpose?
• (Barnier: White Paper before summer to
identify solutions based on problems where
there are and if there are)

5. Overall: not so easy (and not just about enforcement)
• Borderless infringements of territorial rights
• What to sue for? Different scope of protection in MSs, notably
exceptions & limitations
• Where to sue and what to seek? Jurisdiction and damages
• Many fundamental (Charter) rights involved when it comes to
remedies
• Property and effective remedy
• Private life & data protection and freedom of expression
• Freedom to conduct a business

6. Enforcement
& the CJEU

7. Where
Jurisdiction in
Online Infringement
Cases

8. Problem question
You are a UK copyright holder (former progressive rock legend) domiciled
in France and happen to discover that an Austrian company has unlawfully
reproduced your work in Austria, and UK companies have sold unlawful
copies via a website also accessible from France.
You want to sue the Austrian company for “infringement committed by
placing content online” (is this the case? Anyway …)
Where do you go?

9. Brussels I time!
• General rule: MS of domicile of the defendant (Austria)
• Special rule: MS where the harmful event occurred or may occur
i. MS where the damage occurred
ii. MS where the event giving rise to it occurred (UK? Austria?)
Can France be the place where the damage occurred just because
website accessible from there or do you need “intention to target” the
public or other specific connecting factor in that MS?

10. Case C-170/12 Pinckney: accessibility suffices but …
• Copyright holder can sue before courts of each MS where content placed online
is protected and is or has been accessible (AG Jääskinen: “multiplication of
courts”)
• Cf Case C-441/13 Pez Ejduk (pending) which asks whether jurisdiction only subsists in:
• MS of establishment of alleged infringer, and
• MS to which website, according to its content, is directed
• Copyright more akin to a personality right than a trade mark. But:
• Courts jurisdiction only in respect of damage caused in the territory of that MS (cf
eDate)
• CJEU does not say but diverging AG Opinion suggested that general rule allows you to seek
compensation for all damage suffered

11. What
The Role
of ISPs

12. Filtering and blocking injunctions
• Cases C-70/10 Scarlet and C-360/10 Netlog actually prohibited very specific
filtering
(1) all electronic communications passing via ISP’s services; (2) applying
indiscriminately to all its customers; (3) as a preventive measure; (4) exclusively at
ISP’s expense; and (5) for an unlimited period
• Case C-314/12 Telekabel
• When several fundamental rights at stake balance needed
• Blocking injunctions are compatible with EU law, even if not specific
• Up to ISPs to choose how
• Then prove taken all reasonable measures
• Measures must be targeted so to respect users’ freedom of information (liability?)
• A possible paradox: ISPs might infringe users’ fundamental rights!

13. Who
Acting against individuals:
A matter of exception?

14. Case C-435/12 ACI Adam
• Is Dutch law that allows reproductions from unlawful sources to fall
within the scope of the private copying exception (+ private copying
levies) compatible with EU law?
• AG Cruz Villalón (and AG Trstenjak in Padawan): NO
• Exceptions must be interpreted strictly (Painer)
• 3-step test: “do not conflict with a normal exploitation of the work”
• Dutch law indirectly favours massive diffusion of unlawful copies

15. Enforcement is not just about enforcement (CJEU knows it)
• Borderless infringements vs territorial
rights (still?) and responses (still)
• Role of ISPs: between a rock and a hard
place?
• Trite, but don’t forget that only what is
protectable is enforceable
• What falls within exclusive rights?
• How far-reaching are exclusive rights?
• How far-reaching can exceptions and
limitations be?

16. Thank you for your attention!
eleonora@e-lawnora.com
@eLAWnora