Strengthened legal position of rights holders of, for example, computer games, music and film productions. Rights holders are no longer forced to commence infringement proceedings in other countries, but will often be able to take legal action from their home countries. This is the outcome of a new decision made by the European Court of Justice.

In a case on infringement of copyright in several photos, the European Court of Justice has decided that the proper jurisdiction for copyright infringements includes the Member States in which the material subject to infringement was made available online.

However, only the harmful event occurring in the relevant Member State may be pursued; not any additional events occurring in other Member States.

The decision concerns the interpretation and construction of Article 5(3) of the Jurisdiction Regulation stating that jurisdiction within the EU lies with the courts for the place where the harmful event occurred.   According to this provision, it is possible to pursue infringements in the Member State where the infringement took place and in the other Member States where the material was made available online.

Question subject to preliminary ruling request An Austrian Court had referred the following question for a preliminary ruling: 

  • Must Article 5(3) of Regulation no. 44/2001 (the Jurisdiction Regulation, edit.) be construed so that, in a legal dispute on infringement of copyright and copyright-related rights taking place by a photo being made available on a website operated from a top-level domain in a Member State other than the State in which the rights holder has its permanent address, jurisdiction/authority only lies with:
    • The Member State in which the alleged infringer has its permanent address, and
    • The Member State(s) in which the contents of the website have been edited?

In other words, the Court asked whether a rights holder may pursue the infringer in its home country in events where copyright infringement takes place through a website in another Member State, but where the infringement is extended to the home country of the rights holder owing to the global reach of the Internet.

The infringer in the specific case, a German business, submitted that, since the material had been uploaded on a website with the top-level domain .de (a German top-level domain), the contents of the website was directed only at Germany. Therefore, the infringer believed that Austria was not the proper jurisdiction for the commencement of legal proceedings.

The rights holder residing in Austria submitted in response thereto that infringement also took place in Austria since it was possible to watch and download the copyright-protected photos from Austria. Consequently, it should be possible to pursue the infringement in Austria as well.

Ruling by the European Court of Justice

The European Court of Justice laid down that, even though there is no doubt that infringement was committed in Germany where the copyright-protected photos were made available online, infringement also took place in Austria. The reason is that it is possible to access the German website from Austria where the photos are also protected by copyright. The European Court of Justice emphasised that the rights holder may pursue the infringement against the German business in Austria only for the harmful event taking place in Austria. Any harmful events taking place outside Austria must be pursued either in Germany or in the Member State where the event took place.

The case in brief

The rights holder, an Austrian photographer, allowed a German architect to use several of the photographer's photos for a seminar held in a German business. Following the seminar, the German business chose to upload the relevant photos to the business's website without obtaining the consent from the rights holder.

The Austrian photographer subsequently chose to commence infringement proceedings against the German business before the Austrian courts.

Comments by Bech-Bruun

The judgment is particularly interesting in respect of works protected by copyright which may be uploaded and downloaded via the Internet, such as, typically, photos, games, music and film productions.

The judgment makes it possible for rights holders to pursue future infringements in the home country of the rights holder irrespective of whether infringement took place by way of uploads in another Member State. This, however, is subject to documentation proving that the relevant rights are also protected in the rights holder's home country and that it is possible to access the unlawfully uploaded material from that country.

In the rights holder's country, according to the judgment, the infringer may be made liable only for the harmful event occurring there. Any harmful events taking place outside the home country must be pursued either in the country of the infringer's registered address or in the Member State where the event took place.

The judgment entails without doubt another strengthening of the legal position of rights holders, including the possibility to pursue copyright infringements. Rights holders are no longer forced to commence infringement proceedings in another country, but are instead able to pursue infringements in the home country which typically results in cost savings.

The judgment affirms what has previously been the assumption applicable according to Danish law.

The judgment does not change the clear rule that copyright infringements may always be pursued before the courts of the infringer's registered address.