Reaffirm the targeting test for online museums to avoid the applicability of unexpected foreign laws
A - Issue at stake
- There is no global regulatory framework for private international law and intellectual property. As such, various private international law issues are posed by museums’ dissemination of copyrighted content on the Internet (e.g. invoking potential exceptions that would likely apply in their home jurisdiction).
- Notably, it is not always simple to identify which court(s), apart from those of the defendant’s domicile,1 have jurisdiction in such “worldwide” online copyright infringement cases. The law generally provides that courts of the state where the infringement took place are competent.2 However, it does not specify where this is when copyright infringement takes place online.
- Currently, the “access approach” is usually applied to determine whether a court has jurisdiction over an online copyright infringement claim.3 Under this approach, the courts of any place where the infringing content is accessible have jurisdiction. This encourages forum shopping and creates uncertainty as to the applicable jurisdiction(s) and substantive law(s) because defendants may basically choose any jurisdiction in the world.4
B - Clarifications
- The “access approach” in online copyright infringement cases should be rejected in favour of a “targeting approach”, meaning an analysis of whether or not a website directs or targets its activities towards a specific country (irrespective of the fact that a website may be merely accessible in such country). The targeting doctrine has already been applied in a number of CJEU cases5 and is found in the CLIP6 and ALI7 soft law Principles. A similar test is also recommended by the WIPO regarding online trade mark infringement.8
- Such a targeting test should also clearly be adopted for online museums to avoid the applicability of unexpected jurisdictions or unexpected foreign laws. Indeed, this targeting test could help limit both the number of available fora for a claimant at the level of jurisdiction analysis (thus limit forum shopping), and the amount of national copyright laws that need to be reviewed by the chosen Court at the level of applicable law analysis (by allowing courts to quickly dismiss claims of copyright infringement in countries where the website can merely be accessed without indication of targeting).
- In order for Courts to develop a cohesive and predictable reasoning regarding whether a museum “targets” its activities towards a specific state through online dissemination of digitized copies of artworks, additional guidelines should be developed.9