SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

SA1251/08

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	ALAN MACKIE T/A 197 AERIAL PHOTOGRAPHY
	Pursuer and Appellant
	against
	NICOLA ASKEW, LARGSHOLIDAYLETS.CO.UK
	Defender and Respondent

For the pursuer and appellant: Party

For the defender and respondent: Mr Askew, husband of the defender and respondent

AYR: 11 August 2009

The Sheriff Principal, having resumed consideration of the cause sustains the appeal, answers the question in the sheriff's stated case "Did I err in dismissing the claim for want of jurisdiction?" in the affirmative; recalls the sheriff's interlocutor of 1 May 2009; remits the cause to the sheriff to fix a full hearing; finds no expenses due to or by either party in respect of the appeal procedure.

NOTE:

Background to the appeal

1.            The pursuer is a professional photographer who resides in and works from Troon in Ayrshire. His case is that he is the registrant of the domain name and copyright owner and creator of the website which was the source of the infringed material in this case. The pursuer's business is located in Troon, Ayrshire within the jurisdiction of Ayr Sheriff Court. The defender resides in Wemyss Bay, Inverclyde and is the registrant of the domain name of the infringing website, www.largsholidaylet.co.uk. Both the domain name and the associated website are used by her solely for business purposes in respect of rented property in Largs, Ayrshire. Both Wemyss Bay and Largs are within the jurisdiction of Greenock Sheriff Court.

2.            The pursuer seeks reparation for loss and damages sustained by the infringement of copyrights owned by himself and his business which was caused by the defender's publication and infringement of his copyrights globally on the world wide web and further by the defender's breach of statutory duty owed to the pursuer personally under section 103 of the Copyright Designs and Patents Act 1988.

3.            The pursuer claims that on various dates in 2006 and 2007 he took a serious of aerial photographs of the pencil monument and the seafront in Largs, North Ayrshire. These were taken by the pursuer personally and are all his own copyright. The pursuer claims he is the creator and owner of the intellectual property rights of the images concerned. The images were taken for stock purposes for the pursuer's sole benefit. The pursuer has the negatives of the photographs available. Subsequent to these dates copies of several of the photographs taken were displayed as digital images on the pursuer's website, the domain name of which is registered to the pursuer at his home address in Troon. They were placed as examples of the content and quality of the pursuer's work to offer potential clients the opportunity to buy licences to use the photographs. It is said that on the pages showing the images in question and on very page of the pursuer's website during the entire time of the display of these photographs there were clear statements of copyright ownership and moral rights claims.

4.            It is the pursuer's case that on 3 November 2008 a search by the pursuer on the Google image search engine revealed that two of the aerial photographs which were on the pursuer's website were being published on three separate pages of the defender's commercial website at www.largsholidaylets.co.uk, as integral parts of both the index page and further internal pages of that website. The pursuer avers that at no time did the defender or anyone acting on her behalf make any contact or approach the pursuer to seek a licence to use any of these images. The pursuer seeks damages as set out in the statement of claim.

5.            With regards to jurisdiction the pursuer in his statement of claim refers to Schedule 8.2(c) of the Civil Jurisdiction and Judgements Order 2001 which provided inter alia, that a person may be sued:

"in matters relating to delict or quasi delict, in the courts for the place where the harmful event occurred or may occur".

It was said that the copyright property concerned in this case was located in Troon, Ayrshire and was owned by a business based in Troon. The case also concerned a breach of statutory duty owed to the pursuer, resident in Troon. Troon was in the jurisdiction of Ayr Sheriff Court.

6.            The statement of claim also refers to Schedule 8.2(i) of the Civil Jurisdiction and Judgements Order 2001 which further states, regarding jurisdiction:

"In proceedings which are brought to assert, declare or determine proprietary or possessively rights, or rights of security, in or over moveable property, or to obtain authority to dispose of moveable property, in courts for the place where the property is situated."

Part I chapter 1, section 1(1)(a) of the copyright Designs and Patent Act 1988 states:

"Copyright is a property right which subsists in original literary, dramatic, musical or artistic works."

Part I chapter 1, section 4(1)(a) of the said 1988 Act states:

"In this Part "artistic work" means a graphic work, photograph, sculpture or collage, irrespective of artistic quality."

It was averred that this action concerned the infringement of the pursuer's copyright (property rights) in artistic works (photographs). Therefore Ayr Sheriff Court had jurisdiction.

7.            In her defences the defender avers:

"The defendant does not question the jurisdiction of Ayr Sheriff Court but would question the reasons behind the pursuer's choice of court. In previous cases, as far as I am aware, the pursuer had chosen the nearest court to the place of residence to the defendant. Reference Sheriff Court Scotland, Small Claims Information and Procedure Guide para 2.03: "In most cases the court that will hear the claim will be in the one whose areas the person the claim is to be made against (defender) lives or has a place of business." In this case it would be Greenock Sheriff Court. The alleged infringement would have occurred, but not admitted, in the place of residence of the defender, Wemyss Bay, which would be Greenock Sheriff Court. Also the defendant's rented property is based in Largs which again would be Greenock Sheriff Court."

8.            A hearing restricted to jurisdiction took place before the sheriff on 2 April 2009. On 1 May 2009 the sheriff dismissed the claim for want of jurisdiction. The note attached to his stated case is in the following terms:

"Background

The infringement of this copyright averred by the pursuer is the publication of two aerial photographs on the defender's website which is a commercial website dealing with holiday lets in Largs. The pursuer resides in Troon within the jurisdiction of this court and the defender resides in Inverclyde which is furth of this court's jurisdiction.

Submissions for pursuer

The pursuer submitted that this court had jurisdiction to hear this claim in terms of Civil Jurisdiction and Judgements Act 1982 ("the Act"). He stated that the breach of copyright complained of was a delict and the harmful event in respect of it, namely the publication on the defender's website, occurred inter alia within this jurisdiction. He referred to the opinion of Lord Drummond Young dated 1 July 2002 in the case of Bonnier Media Ltd v (First) Gregg Lloyd Smith and (Second) Kestrel Trading Corporation. In that case Lord Drummond Young, dealing with a case of passing off and trademark infringement opined: "That the person who sets up the website can be regarded as potentially committing a delict in any country where the website can be seen, in other words in any country in the world. It does not follow that he actually commits a delict in every country in the world, however. It is obvious that the overwhelming majority of websites will be of no interest whatever in more than a single country or a small group of countries. In my opinion a website should not be regarded as having delictual consequences in any country where it is unlikely to be of significant interest." That case contained a threatened delict on the part of the defenders who had set up a website through a server outwith Scotland. Lord Drummond Young opined: "That the requirement that the effect in Scotland of the website should be significant is plainly satisfied, and that accordingly the defenders can be regarded as threatening delict in Scotland. I accordingly conclude that the Scottish courts have jurisdiction over the defenders."

The pursuer further submitted that Lord Drummond Young's reasoning should be applied to the instant case. Although the defender's website was set up outwith this jurisdiction the viewing of the copyrighted material within the jurisdiction was tantamount to publication in this jurisdiction and so the harmful event occurred here.

The pursuer also referred to section 20 of the copyright Designs and Patent Act 1988 ("the Copyright Act"). This section deals with infringements of copyright by communications to the public. As far as I could see it had no bearing on the question of jurisdiction.

Submissions for the defender

The defender submitted that her website was made up in Wemyss Bay. Accordingly the harmful event took place their outwith this court's jurisdiction.

Decision

In terms of Rule 2(c) of schedule 8 of the Act in matters relating to delict a person may be sued in the courts at the place where the harmful event occurred.

It seemed to me that the proper approach to this matter was to pose two questions. The first question being what did the harmful event consist of. The second being where did the harmful event occur.

In his statement of claim the pursuer contends that his copyright in photographs was infringed by the defender's publication of them on the defender's website. I assume that the infringement for which the pursuer sought damages was what he considered to be the infringement by communication to the public which is struck at by virtue of section 20 of the Copyright Act. The potential for communication occurred when the pursuer's photographs were uploaded (if that be the correct term) without permission or licence to the defender's website. Without that having occurred no member of the public could have viewed the photographic images via the internet on the defender's website. Applying first principles it seemed to me that the potential for members of the public to view the photographs by visiting the defender's website would not have occurred but for the posting of the photographs on that website. I therefore concluded that it was the posting of the photographs on the defender's website, equivalent to publication, as opposed to viewing them on that website which was the harmful event. I equiparated this with breach of copyrighted material by publishing it in a book, the harmful event being the publication of the material as opposed to the reading or viewing of it.

I did not find the pursuer's reference to Bonnier Media Ltd v (First) Gregg Lloyd Smith and (Second) Kestrel Trading Corporation particularly helpful. In that case Lord Drummond Young was dealing with a conclusion for interdict relating to infringement of a trademark. It can accordingly be distinguished from the instant case which relates to a claim for damages.

So far as where the harmful event occurred is concerned the defender contended and the pursuer did not dispute that the posting of the photographs to her website occurred in Wemyss Bay, furth of this court's jurisdiction.

My conclusion therefore was that the court had no jurisdiction to consider this small claim. I therefore dismissed it as incompetent.

In the note of appeal the pursuer essentially reiterated the arguments which he made before the sheriff. This case comes before me by stated case and the issue for me is "Did I err in dismissing the claim for want of jurisdiction?".

9.            I heard parties on this appeal in Ayr Sheriff Court on 28 July 2009.

Preliminary issue

10.        The pursuer raised a preliminary issue, namely that at no point had the defender challenged the jurisdiction of the court. The defender had lodged an appeal and lodged in her statement of defence:

"The defendant does not question the jurisdiction of Ayr Sheriff Court but would question the reasons behind the pursuer's choice of court. In previous cases, as far as I am aware, the pursuer had chosen the nearest court to the place of residence to the defendant. Reference Sheriff Court Scotland, Small Claims Information and Procedure Guide para 2.03: "In most cases the court that will hear the claim will be in the one whose area the person the claim is to be made against (defender) lives or has a place of business". In this case it would be Greenock Sheriff Court. The alleged infringement would have occurred, but not admitted, in the place of residence of the defender, Wemyss Bay, which would be Greenock Sheriff Court. Also the defendant's rented property is based in Largs which again would be Greenock Sheriff Court."

11.        The pursuer referred to the Civil Jurisdiction and Judgements Order 2001 as amended schedule 8, para 7 (1) which provides:

"Apart from jurisdiction derived from other provisions in this Schedule, a court before whom a defender enters an appearance shall have jurisdiction."

12.        It was submitted that, as the defender had entered appearance in this case, Ayr Sheriff Court was deemed to have jurisdiction.

13.        The defender's husband, who appeared on behalf of the defender stated that his wife had received the summons on 24 December 2008 at a time when their eldest daughter was being admitted to hospital for surgery. He wrote to the Sheriff Clerk asking that the case be delayed. The hearing date was in fact 20 February 2009. The Sheriff Clerk stated that all they needed to do was submit a written defence for the hearing on 20 February 2009. He then said: "We wrote to say the case should be held in Greenock". They both in fact appeared in court on 20 February 2009. The sheriff asked if a copy of the defence had been sent to the pursuer. As they had not known this should have been done, the case was continued to allow this to be done. It was submitted that, from February 2009, the pursuer knew they were questioning the jurisdiction of the court.

14.        Considering the issue broadly, I am prepared to construe the defence as a challenge to the jurisdiction of the court. The sheriff clearly so interpreted it. In fact he dealt with two other cases where the same point on jurisdiction was raised at the same time. In my opinion it was proper for the sheriff to appoint a hearing on the question of jurisdiction. I take the view that the provisions of Schedule 8 para 7(1), on which the pursuer relied, do not prevent a party entering an appearance in a case on the basis that the jurisdiction of the court is challenged. The pursuer's preliminary point accordingly fails.

The merits of the appeal - submissions for the pursuer and appellant (hereinafter referred to as the pursuer)

15.        I was referred to the facts of this case which the pursuer sought to prove. I have set these out at paras 1 to 5 hereof. I was referred to various sections of the Copyright Designs and Patent Act 1988 as follows:

"Section 1(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work-

(a) original literary, dramatic, musical or artistic works. ...

Section 2(1) The owner of a copyright in a work of any description has the exclusive right to do the acts specified in chapter II as the acts restricted by the copyright in a work of that description.

Section 4(1) In this part "Artistic work" means - (a) graphic work, photograph, sculpture or collage, irrespective of artistic quality.

Section 9(1) In this part "author" in relation to a work means the person who creates it.

Section 16(1) The owner of the copyright work has ... the exclusive right to do the following acts in the United Kingdom -

(a)  to copy the work

(2)           copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

Section 20(1) The communication to the public of the work is an act restricted by the copyright ...

(2)           References in this Part to communication to the public by electronic transmission, and in relation to work include - ...

(b)  the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen to them."

16.        It was accordingly submitted that the placing of the pursuer's photographs in which he had a copyright on the defender's website was an infringement of his copyright. Copyright was a property right. The pursuer, who took the original photographs was the owner of that property.

17.        I was also referred to sections 77 and 78 which indicated that if someone in the position of the defender were to publish the photographs in which the pursuer had copyright on her website, the pursuer had the right to be identified as the author of this artistic work. Her publication of the pursuer's photographs on her website was a breach of the pursuer's rights under the 1988 Act. I was referred to section 103(1):

"an infringement of a right conferred ... is actionable as a breach of statutory duty owed to the person entitled to the right".

18.        The pursuer's position was that he was seeking damages for breach of copyright from the defender in that she published his photographs on her website without authority and also for breach of statutory duty by the defender in failing to identify the pursuer as the owner of the work.

19.        As far as jurisdiction to bring an action is concerned, I was referred to the Civil Jurisdiction and Judgements Order 2001 as amended and in particular schedule 8 as follows:

"2 Subject to Rules 3 ... 4 ... 5... and 6 a person may also be sued (c) in matters relating to delict or quasi delict, in the courts where the harmful event occurred or may occur ... (i) in proceedings which are brought to assert, declare or determine proprietary or possessory rights, or rights of security, in or over moveable property, or to obtain authority to dispose of moveable property, in the courts for the place where the property is situated."

With regard para 2(i), the pursuer submitted that as he resided in Troon and the photograph was registered to him in Troon and as it was published in Troon as his property, the use of his photographs without permission involved offences against his property. There was also a breach of statutory duty in failing to identify him as the copyright owner. It was submitted the pursuer was located in Troon, the negative of the photograph was located in Troon and therefore the ownership of the photograph was in Troon. The property is in the jurisdiction of the court and in terms of section 2(i) of schedule 8 the court has jurisdiction. The copyright which was being infringed was within the jurisdiction of the court.

20.        With regard to para 2(c), I was referred to Macphail Sheriff, Court Practice, third edition at para 3.93:

"Delict or quasi delict. By virtue of Rule 2(c) in matters relating to delict or quasi delict a person may be sued in the courts for the place where the harmful event occurred or may occur. ... The rule is derived from Article 5(3) of the Brussels I Regulation, and it mirrors Article 3(c) of schedule 4. Proceedings for interdict are dealt with in Rule 2. Under Rule 2(3) a sheriff court now has jurisdiction over the defender if the place where the damage occurred ("the place of harm") or the place of the event giving rise to the damage ("the place of acting") is situated within the Sheriffdom. ... In the context of defamation, the courts of the place where the publication of the alleged defamatory publication is established, have jurisdiction to consider the whole claim. The pursuer can alternatively sue in each legal system where the publication was distributed and his reputation was allegedly damaged but the courts in each place can adjudicate on the injury caused in that place to the victim's reputation. The ECJ has stated that Article 5(3) applies to all actions "which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5(1)""

21.        It was the pursuer's position that the harm was done to him in the jurisdiction of this court both by means of the copyright infringement and breach of statutory duty. He set out his heads of loss to his business in Troon, based on unauthorised use, in para 22 of the Statement of Claim. The harmful infringement could be accessed by computers in Ayrshire within the jurisdiction of Ayr Sheriff Court. He discovered the infringement in Ayrshire when he accessed the defender's website. He would call other witnesses who had done so.

22.        I was also referred to the case of the decision of Lord Drummond Young in Bonnier Media Ltd v (First) Gregg Lloyd and (Second) Kestrel Trading Corporation 2002 Scot CS 347 (1 July 2002). That case involved a threatened infringement of a Scottish trademark by a company based in Greece with property in Mauritius. It was submitted that the rights of a holder of a copyright was similar to the rights of a holder of a trademark. I was referred to the dicta of Lord Drummond Young as follows:

"18. The critical question for present purposes is the location of a wrong that is said to have been committed by way of the Internet. For present purposes it is sufficient to consider cases of passing off and trademark infringement, although I find it difficult to see why similar principles should not be applied to delicts such as defamation, or indeed negligence. ... The Internet should rather be viewed as a process of communication. It is, in essence, a system of communication which allows a verbal or graphic message to be set up on a computer, which may be situated anywhere in the world, and conveyed to another computer, which may likewise be situated anywhere in the world. ... The person who creates the website is linking himself into a process of communication, with the obvious intention that communication should take place by way of that process.

19. It follows, in my opinion, that the person who sets up the website can be regarded as potentially committing a delict in any country where the website can be seen, in other words in any country in the world ...

20. In the present case the pursuers aver that their circulation is substantially in Scotland. ... I am of opinion that the requirement that the effect in Scotland of the website should be significant is plainly satisfied and that accordingly the defenders can be regarded as threatening delict in Scotland. Accordingly I conclude that the Scottish courts have jurisdiction over the defenders."

23.        It was submitted that what Lord Drummond Young was saying was that because the trademark was owned by a Scottish company, the Scottish Courts had jurisdiction over it as that is where the property was located. It did not matter whether the company infringing the trademark was in Greece or Mauritius. The harm was threatened against a Scottish company and therefore the Scottish courts had jurisdiction. It was suggested that in this case, on a smaller scale, a harm had been committed against the pursuer's property within the jurisdiction of Ayr Sheriff Court. When the defender set up her website with the pursuer's photographs thereon, a delict might occur in any place where the website could be seen. In this case a delict did in fact occur when the website was accessed within the jurisdiction of Ayr Sheriff Court. There was accordingly jurisdiction.

24.        It was submitted the purpose of schedule 8 of the 2001 Act was to allow pursuers to raise actions in their home court against distant defaulters who breached their property rights and were in breach of statutory duty. It was submitted that the purpose of schedule 8 was to enable the person who had been wronged to bring the offender to his home court, as opposed to the general rule where the domicile of the defender would be paramount.

Submissions for the defender and respondent (hereinafter referred to as "the defender")

25.        The defender's husband referred to the "general small claims rule" which he had referred to in the written defences. Para 2.03 of the Sheriff Court (Scotland), Small Claims Information and Procedural Guide, stated: "in most cases the court that will hear the claim will be the one in whose area the person the claim is to be made against lives or has a place of business". He also referred to the fact that his wife had instructed another person to prepare the website for her. She had not been involved. In discussion he accepted the second matter was not relevant for present purposes. Indeed, whether it is relevant at all will no doubt be the subject of discussion at any proof to follow hereon. The defender's husband indicated that a number of actions had been raised by the pursuer against persons within the jurisdiction of Greenock Sheriff Court and he saw no reason why this should not take place on this occasion.

Decision

26.        The pursuer in this case claims that he has copyright in certain aerial photographs which he took at Largs. His purpose in taking these photographs was to place them on his own website as examples of his work as a professional photographer. He would then obtain his income either by charging clients for the right to use these photographs or by achieving commissions from members of the public for photographic work as a result of the standard of his work on his website. His case is that the defender, in setting up her own website in connection with her holiday letting business in Largs, uploaded two of the photographs which were on his website onto her website without authority or permission and thus infringed his copyright.

27.        As I have set out in detail in the submissions recorded on behalf of the pursuer, he seeks damages for breach of copyright and also breach of the defender's statutory duty to identify him as the owner of the photographs published on the defender's website. The defenders' residence and place of business are both within the jurisdiction of Greenock Sheriff Court. She uploaded the pursuer's photographs onto her website within that jurisdiction.

28.        However, the pursuer claims jurisdiction in Ayr Sheriff Court in terms of the Civil Jurisdiction and Judgements Order 2001, schedule 4 para 2 which provides:

"Subject to ... a person may also be sued

(c) in matters relating to delict or quasi delict, in the courts for the place where the harmful event occurred or may occur."

The pursuer claims that, on the basis of the dicta in Macphail in para 3.93 and the dicta of Lord Drummond Young in Bonnier Media Ltd, which I have set out, he is entitled to seek damages for breach of copyright and statutory duty. An event harmful to his property interests, namely the publication of the photographs in which he claims copyright on the worldwide web, might occur within the jurisdiction of Ayr Sheriff Court as soon as the defender uploaded his material onto her website, and in fact did occur there when the defender's website was viewed by the pursuer and others. Additionally the place where the alleged damage occurred, namely Troon was within the jurisdiction of Ayr Sheriff Court.

29.        I consider that Ayr Sheriff Court does have jurisdiction to deal with this action. I refer to Anton & Beaumont's "Civil Jurisdiction in Scotland", which is referred to in Macphail, Sheriff Court Practice, third edition at para 3.93, and their interpretation therein of the words "where the harmful event occurred". Referring to Article 5(3) of the Brussels (1), Regulation from which Schedule 4 para 2(c) of the 2001 Act is derived, the learned authors opine at paras 5.39 and 5.40

"5.39 Article 5(3) uses the expression "the courts for the place where the harmful event occurred". No test in precisely the same terms was utilised as a criterion of jurisdiction in the legal systems of the original Member States, but the place of the delict was admitted as a criterion of jurisdiction in the laws of France and Germany and was admitted indirectly by the laws of the other Member States. In these systems there had been some controversy at to whether the words "place of the delict" referred to the place where the wrongful act was committed or the place where the prejudice was sustained. The slightly different formula adopted by the draftsman of the Convention really does not resolve this ambiguity. In the words of the Jenard report:

"Article 5(3) uses the expression "the place where the harmful event occurred". The Committee did not think it should specify whether that place is the place where the event which resulted in damage or injury occurred or whether it is the place where the damage or injury was sustained. The Committee preferred to keep to a formula which had already been adopted by a number of legal system (Germany, France)."

5.40 In effect, therefore, it was left to the European Court to resolve the problem. The issue arose in the "Reinwater case" (case 21/76 Bier v Mines de Potasse d'Alsace 1976 ECR 1735), where Bier D.V., a market gardening firm in the Netherlands, and the Reinwater Foundation, a body which seeks the enhancement of the quality of the water in the Rhine Basin, sought compensation in a Rotterdam court from a French undertaking, the Mines de Potasse d'Alsace for damage caused to the pursuer's business by the alleged discharge of saline waste caused by the defenders into the Rhine. The defenders argued that the Dutch court lacked jurisdiction on the ground that the place where the harmful event occurred was in France not in the Netherlands. The Gerechtshof at the Hague asked the Court of Justice for a ruling on the interpretation of the words "place where the harmful event occurred". The European court, after referring to the history and justification of Article 5(3) above and the fact that the issue had been left open by the draftsman of the Convention, explained that in its view both the place of the event at the origin of the damage and the place where the damage occurred constituted significant connecting factors with regard to jurisdiction. It would be inappropriate, therefore, to opt for one of them to the exclusion of the other.

"To exclude one option appears all the more undesirable in that, by its comprehensive form of words, Article 5(3) of the Convention covers a wide diversity of kinds of liability. Thus the meaning of the expression "place where the harmful event occurred" must be established in such a way as to acknowledge that the plaintiff has an option to commence proceedings either at the place where the damage occurred or at the place of the event giving rise to it."

Thus the pursuer's were given the option of suing the defender either in the place where the damage occurred (the Netherlands) or in the courts of the place of the event which gave rise to and is the origin of the damage (France)."

Accordingly, it appears to me that it is open to the pursuer to raise proceedings against the defender either in the court of the place where the damage occurred, namely the pursuer's place of business in Troon (Ayr Sheriff Court), or in the court of the place where the event which gave rise to and was the origin of the damage, namely the uploading by the defender on her website at Wemyss Bay (Greenock Sheriff Court).

30.        It is alleged that the defender uploaded two of the pursuer's photographs, on which he claimed copyright, on her website. I refer to the dicta of Lord Drummond Young in the case of Bonnier Media Ltd supra at para 18:

"18. The critical question for present purposes is the location of a wrong that is said to have been committed by way of the internet. ... The internet should rather be viewed as a process of communication. ... The person who creates the website is linking himself into a process of communication, with the obvious intention that communication should take place by way of that process.

When the defender uploaded the photographs in which the pursuer claims copyright on her website, she was linking herself into a process of communication. By doing so, in the words of Lord Drummond Young:

"19. It follows, in my opinion, that the persons who sets up the website can be regarded as potentially committing a delict in any country where the website can be seen, ..."

I take the view that, when the defender uploaded the pursuer's photographs on her website in Wemyss Bay, she was at that time potentially committing a delict anywhere that the defender's website could be seen. She was accordingly at that time potentially committing a delict within the jurisdiction of Ayr Sheriff Court, and in fact did do so when her website was viewed there by various people including the pursuer. The pursuer still has to prove his case, but if the factual position is as he avers, there has been a breach of copyright and a breach of statutory duty by the defender. It is open to him to raise his action in Ayr Sheriff Court, being the court for the place where the defender's website was in fact seen and where the damage alleged to have been suffered by the pursuer occurred, or in Greenock Sheriff Court, being the court of the place where the event giving rise to the damage occurred.

31.        I am fortified in this view by a consideration of the recent textbook "Contemporary Intellectual Property Law and Policy" by McQueen Waelde and Laurie where the learned authors opined, when considering Article 5(3) at para 22.17:

"As can be seen from the wording, Article 5(3) directs the claimant to the court, or the place where the harmful event occurred or may occur. Under this Rule, if the defendant is sued in the place which gives rise to the harmful event, he can be sued in those courts for the harm in its entirety. If, however, the claimant chooses to sue the defendant in the court where the harm is felt, he can sue only for the damage that is felt in that place.

The learned authors clearly took the view that it was open to a party to sue in the court where the harm was felt. In this case it is the pursuer's case that the harm was felt at his business address in Troon (within the jurisdiction of Ayr Sheriff Court) and he seeks damages as set out in para 22 of his statement of claim.

32.        The pursuer also raised the question of whether there was jurisdiction in Ayr Sheriff Court on the basis of the 2001 Order, schedule 8 para 2(i) which provides:

"... a person may be sued: ...

(i) In proceedings which are brought to declare or determine proprietary or possessory rights, or rights of security, in or over moveable property or to obtain authority to dispose of moveable property, in the courts for the place where the property is situated."

While this provision certainly allows the pursuer to prove his proprietary rights in the photographs within the jurisdiction of Ayr Sheriff Court, this is not an action which has been brought for the sole purpose of declaring or determining these rights in the photographs. It is his right to claim damages based on delict that is the essential basis of the pursuer's action. As I have already said, I am of the view that Ayr Sheriff Court has jurisdiction to deal with this action based on para 2(c). As part of his case, the pursuer will require to prove that he does have proprietary rights in the photographs said to have been used by the defender.

33.        In the whole circumstances I shall allow the appeal and answer the question posed in the sheriff's stated case namely "Did I err in dismissing the claim for want of jurisdiction?" in the affirmative. I shall remit the cause to the sheriff to fix a full hearing. I make no finding of expenses in respect of the appeal procedure.