International Jurisdiction over On-line Copyright Infringements under EU Private International Law

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 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.