1709 Blog: for all the copyright community

Friday, 23 January 2015

Online infringement actionable where damage occurs, irrespective of where it was intended to happen, says CJEU

In another preliminary ruling of yesterday's date, the Court of Justice of the European Union (CJEU) had to determine where a copyright owner can bring proceedings for infringement when a third party has made the work available online for viewing and downloading without consent. The decision is Case C‑441/13, Pez Hejduk v EnergieAgentur.NRW GmbH, a request for a preliminary ruling from the Handelsgericht Wien (Austria).

The facts are as follows. Pez Hejduk, a professional photographer of architecture, created photographic works depicting the buildings of the Austrian architect Georg W. Reinberg. As part of a conference organised by EnergieAgentur, Reinberg used Hejduk’s photographs in order to illustrate his buildings, with her permission.  Subsequently EnergieAgentur -- without Hejduk’s consent and without stating that she was the author -- made those photographs available on its website for viewing and downloading. Hejduk sued EnergieAgentur in the Handelsgericht Wien, seeking damages of over 4,000 euro plus permission to publish the judgment at EnergieAgentur's expense.

EnergieAgentur raised an objection that the Handelsgericht Wien lacked international and local jurisdiction, saying that its website was not directed at Austria and that the mere fact that a website may be accessed from Austria is insufficient to confer jurisdiction on that court. The Handelsgericht Wien therefore stayed the proceedings and asked the CJEU:
‘Is Article 5(3) of [Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed by keeping a photograph accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled, there is jurisdiction only

– in the Member State in which the alleged perpetrator of the infringement is established; and

– in the Member State(s) to which the website, according to its content, is directed?’
Yesterday the CJEU ruled as follows:
Article 5(3) ... must be interpreted as meaning that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.
While the jurisdictional side of the ruling has its upside, the notion that the court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated is a pain if it potentially means separate litigation in each of 28 jurisdictions to recoup damages on a country-by-country basis, particularly if the aggregated damage is substantial but the per-country damage is rather less so.

Eleonora's Katpost, pointing out that the Advocate General's Opinion also took the view that damages rulings should not be so limited, can be read here.

1 comment:

Francis Davey said...

If the infringing event happens in the EU or the infringer is (domiciled) in the EU then you always have the option of suing them for all the damage either where the event occurred or where they are domiciled.

In other words: you would never have to sue in all 28 EU member states. At least one of them would be sufficient for all.

The point is that 5(3) gave an additional set of options for claimants, at their convenience, to depart from the default rule. That accommodation to claimants only goes so far. If the claimant wishes to found jurisdiction on location of the damage, that is their choice, but it comes with limitations.