1. Cross border copyright infringement on the internet The Dutch Perspective Wouter Pors

2. page 2 Product or service offered on website may infringe on intellectual property rights or other rights Website content itself may infringe Does the court have jurisdiction? Which law should be applied? Should some remedy be granted? Making available through the internet 3. page 3 Copyright infringement is a tort Infringement has actually happened in The Netherlands Injunction for future infringements Various orders Damages for past infringements Threat of imminent infringement No actual infringement required for jurisdiction Website content may be sufficient Injunction for future infringements Order to change website content Order to make website inaccessible from The Netherlands Jurisdiction, act and remedy 4. page 4 Defendant based in The Netherlands Article 2 Brussels Regulation National procedural law (non-EU defendants) Jurisdiction basically cross-border Website content directed at The Netherlands Article 5 (3) Brussels Regulation Jurisdiction basically only for The Netherlands Other circumstances, such as servers and the like Also article 5 (3) Jurisdiction general rules 5. page 5 Supreme Court 18-2-2005, Ladbrokes v. NationaleSporttotalisator Ladbrokes is a bookmaker based in the UK Placing bets is possible through www.ladbrokes.com and by phone Ladbrokes does not have a permit for offering gambling services in The Netherlands Offering an opportunity to participate from outside The Netherlands is covered by the statutory law regulating gambling, as it has to be seen as offering such opportunity in The Netherlands, if the website is inter alia directed at The Netherlands No explicit ruling on jurisdiction Jurisdiction website content 6. page 6 District Court Amsterdam 12-02-2009, Cassina v. Dimensione Direct Sales Acts of Dimensione are unlawful if making available of the work is inter alia directed at The Netherlands (cfLadbrokes) Website is directed at The Netherlands if for instance Top level domain is .nl Language of the website is Dutch Website has an option for Dutch language Reference on the website is made to The Netherlands Website order form, option for The Netherlands Otherwise clearly aimed at The Netherlands Case-to-case assessment whether website isinter alia directed at The Netherlands Jurisdiction website content 7. Subject matter | Client details page 7 District Court The Hague 13-07-2007, Applerav. Stratagene Patent for an apparatus for monitoring a nucleic acid amplification reaction US company Stratagene Corp owns website www.stratagene.com Infringing systems are offered world-wide through this website, including The Netherlands Dutch distributor on website Court assumed jurisdiction Preliminary injunction granted Jurisdiction website content 8. page 8 District Court The Hague 8-2-2005, Vitra Collections v. Classic Design International Mere accessibility is insufficient District Court The Hague 16-9-2005, Stichting De Thuiskopie v. Opus Supplies BV Statutory copyright levy on blank information carriers Sales directed at The Netherlands However, Dutch consumer buying such carriers abroad is the importer, only consumer can be regarded as infringer Possible solicitation by Opus does not change this District Court The Hague 19-2-2004,Vacu Products v. Idee-Exclusiv Disclaimer that products are not exported Thus no indication of infringement in The Netherlands Exceptions 9. Thank you wouter.pors@twobirds.com Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated businesses. www.twobirds.com