1.5 Determining the country where a work is being used: online dissemination

Index Good to know FAQ

In the case of copies being handed out to students, it is easy to determine the place (and so the country) where the work is being reproduced and distributed. When a work is disseminated over the Internet, however, it becomes more difficult to identify the country where the work is being used: is it the country where the work has been published online? Or the country from which the work can be accessed? Or the country where the work is being viewed? Or the country where the damage was committed? Or the country of residence of the victim? There is no definitive answer. Again, each case should be dealt with on an individual basis and any possibility of a conflict of law or jurisdiction cannot be ruled out altogether.

One act, several offences – how a website is received could mean that several offences stem from one single act, depending on where it is received. Thus a website for Swiss, French and Belgian audiences could be the cause of a copyright infringement in each of these countries. Because of this, publishers put location-based blocks on their services (e.g. YouTube, Netflix, etc.).

Good to know

Connecting factor of an “online” offence

For example, as defined in disputes, French case law has retained the operative factor criteria, i.e. the place the work was published online (Cass., Civ. 1, 30 January 2007, no.03-12354), the place where the damage took place (TGI Paris, chapter 3, section 2, 18/12/2009, ed. Seuil et al. / Google Inc. and France), or even the place where the website is received (Cass., Com. 10 July 2007, no.05-18571).

FAQ

1.5-1 A professor teaching at the University of Neuchâtel and Lyon wants to publish a photo that he took of Zurich station and which features the Niki de Saint Phalle sculpture on his French-language blog on railway history. How should this be approached?

The lecturer’s blog can be considered as aimed at French and Swiss audiences, which implies that France and Switzerland can be considered as the places where the work can be accessed. While the use of the photo may not cause any problems in Switzerland (here the limiting provision of Article 27 of the Swiss Copyright Act, works on premises open to the public, applies), this kind of limiting provision does not exist in France. The artist’s successors in title may claim an infringement of their copyrights (use of the photos without consent) in France.