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Where does it hurt? Location of damage determines jurisdiction for copyright infringement online

James Seadon
23/01/2015
The CJEU ruled yesterday that a photographer who claims her copyright works have been infringed online is entitled to sue the alleged infringer in the courts of her home country rather than those of The CJEU ruled yesterday that a photographer who claims her copyright works have been infringed online is entitled to sue the alleged infringer in the courts of her home country rather than those of the country where the defendant is based. In doing so the Court accepted the so-called accessibility criterion (identifying the jurisdiction in which damage has been caused) rather than insisting on the causal event criterion (which considers where the offending material was uploaded).

Background

Pez Hejduk is based in Vienna, Austria. According to the Court she is a professional photographer specialising in architecture, and her works include photographs of buildings designed by the Austrian architect Georg W. Reinberg. Ms Hejduk allowed Mr Reinberg to use her photographs at a conference organised by the German energy company EnergieAgentur.NRW GmbH. So far, so good – but EnergieAgentur apparently then published the photographs on its website. It did so without authority from Ms Hejduk, who objected to the photographs being generally accessible for viewing and downloading.

Claiming that her copyright had been infringed, Ms Hejduk sued EnergieAgentur in the Austrian courts. EnergieAgentur, as a foreign defendant, argued that the Austrian Courts had no jurisdiction over the matter. The company is based in Düsseldorf, Germany, and its website is hosted in the German top level domain, ".de". EnergieAgentur wanted the German courts to hear the dispute.

Jurisdiction

Cross-border litigation can present challenges, both procedural and logistical. The question of where to bring proceedings is critical, and can influence their strategic direction and indeed outcome. Established laws, including the Brussels Regulation (Regulation 44/2001) provide a framework, but this remains an area where careful planning at the outset can pay dividends later.

Online copyright infringement exemplifies the difficulties that can crop up in international disputes, and particularly so where the alleged infringement consists of publishing to a passive audience of web users, rather than sales to particular individuals. Often, proceedings will be brought against a defendant in its home courts (i.e. those of the Member State where it is domiciled). Nonetheless, there may be alternatives: for instance Article 5(3) of the Brussels Regulation states that:

"A person domiciled in a Member State may, in another Member State, be sued ... in the courts for the place where the harmful event occurred or may occur."

This provision is at the heart of the Hejduk reference to the CJEU. Where online copyright infringement is concerned, it can be tricky to locate the harm that has been caused. The Austrian Court therefore stayed proceedings in order to ask the CJEU:

"Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 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 in that a photograph was kept 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 infringer is established; and

–    in the Member State(s) to which the website, according to its content, is directed?"

The CJEU has in the past adopted an "intention to target approach" where jurisdiction could be granted to the courts in any Member State whose public had been targeted by the material website. In more recent cases it has invoked an "accessibility criterion" where jurisdiction would be available in countries where the infringing content was accessible online.

The CJEU's decision in Hejduk was that, in disputes of this nature, copyright owners should be able to bring proceedings in the courts of the Member State where harm was caused. As is the case here, this will often be the copyright owner's home country, but it could conceivably extend to a key foreign market for commercial exploitation of the works, or perhaps one where the alleged infringement takes on a special and particularly harmful meaning.

What does it all mean?

This confirms, contrary to the view of AG Jääskinen, the Advocate General advising the CJEU in this case, that a claimant copyright owner does not have to bring proceedings in the Member State where the defendant operates and committed the act (here, uploading) which led to the delocalised harm of online infringement. That causal event analysis was immaterial here. Similarly, it did not matter that the website in question is hosted in the .de ccTLD and might be said to target a German but not Austrian public. Ms Hejduk was entitled to bring proceedings in Austria.

That said, there is something of a sting in the tail, with the CJEU reminding us that the Austrian court will only be able to award damages (assuming infringement is made out) for the harm in Austria. Taking this approach will not necessarily suit claimants who suffer damage in several jurisdictions.

This case is a helpful reminder that claimants often have options when it comes to protecting or enforcing their IP rights. Fieldfisher's international expertise ensures our clients receive seamless advice in cross-border disputes, reflecting the reality of the digital economy. Issues of jurisdiction should always be considered at the outset of a dispute, as this can be a contributing factor in how swiftly (and cost-effectively) matters are resolved. Getting the decision right can persuade a defendant that constructive engagement is best for all involved.

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