Fighting European ‘Copyright Tourism’: Lessons from Defamation Laws

Abstract

In the recent cases of Pinckney and Hejduk, the ECJ revised European rules on jurisdiction over online copyright infringement disputes – making it possible for claimants to bring their lawsuits in virtually any European country. Due to the application of lex loci protectionis, this choice of venue also affects the law applicable to disputes. This article shows that this results in a substantial forum shopping risk, despite safety mechanisms built into the ECJ judgments. It explains that forum shopping is not inherently bad, but that it creates major problems for copyright laws, given its potential to shift the balance between the authors and exploiters of the work. In an attempt to identify a possible solution, this article turns to the substantive implementation of de minimis principle in Principles on Conflict of Laws in Intellectual Property (CLIP) Principles. The success of this approach is illustrated through the field of media law, and specifically, the way in which United Kingdom solved the problem of libel tourism. Examining the substantive requirement of ‘serious harm’ found in the UK Defamation Act of 2013, the article proposes amending national copyright laws as to state that absent showing of the intention to target a certain Member State by the online infringing activity or, alternatively, a ‘serious harm’ suffered on its territory, no copyright infringement is to be found. This way, forum shopping in online copyright infringement cases may be stopped in its tracks, before it becomes a rampant practice in Europe.