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Mackie t/a 197 Aerial Photography v Askew ? Ayr Sheriff Court, August 2009


The Pursuer/Appellant raised an action at Ayr sheriff Court claiming damages for both breach of copyright and for breach of the Defender/Respondent's statutory duty under the Copyright, Designs and Patents Act 1988 to identify the Pursuer as the owner of photographs that the Defender had published on her website. The Pursuer had taken aerial photographs of areas in Largs and had displayed these as digital images on his website. Two of these photographs were later displayed on the Defender's commercial website advertising her business. She had not sought a licence for use of the images. The Pursuer lived and worked in Troon and his business was based there. Troon is in the jurisdiction of Ayr Sheriff Court. The Defender lived and had her business within the jurisdiction of Greenock Sheriff Court and her business involved renting properties in Largs, which is also within that jurisdiction. The Pursuer based jurisdiction on Schedule 8.2 (c) of the Civil Jurisdiction & Judgements Order 2001. This provides that a person may be sued “in matters relating to delict or quisi delict, in the Courts for the place where the harmful event occurred or may occur”. The Pursuer argued that the harm that had been done to him occurred in the jurisdiction of Ayr Sheriff Court, both in terms of the copyright infringement and the breach of statutory duty. He also referred to Schedule 8.2(i) of the 2001 Order, which provides for proceedings relating to proprietary rights in moveable property to be raised in the courts for the place where the property is situated. Copyright was a property right and the Pursuer was the owner of that property. At a hearing restricted to the issue of jurisdiction, the Sheriff had dismissed the claim for want of jurisdiction. He had decided that it was the uploading of the photographs that had been the harmful event and that had taken place at the Defender's place of business. At the appeal, the Sheriff Principal had to determine whether the Sheriff had been correct to dismiss the action. He referred to Anton and Beaumont's “Civil Jurisdiction in Scotland” and the interpretation there of the words “where the harmful event occurred”. The Sheriff Principal was of the view that the Pursuer could raise proceedings against the Defender either in the place where the damage occurred, that is the Pursuer's place of business in Troon, or in the Court of the place where the event which gave rise to the damage took place. The Sheriff had erred in dismissing the action and the appeal was allowed. The case was remitted to the Sheriff to fix a full hearing.