The Court of Justice of the European Union (CJEU) has confirmed there is flexibility in the choice of forum for copyright infringement in the EU by re-iterating its interpretation of the special jurisdiction rules in Article 5(3) of Regulation 44/2001 (the "Regulation") which permit a copyright owner to sue in the courts of a member state in which the harmful event occurs or may occur. The ruling says that this is the case even where specific sales are not made in the member state concerned, provided the infringing material is accessible from that Member State.
This decision follows on from the decisions in Pinckney v Mediatech and Hi Hotel HCF SARL v UWE Spoering and confirms that the appropriate test is the accessibility of infringing material from the member state, and that this will apply even if the work is not specifically shipped or sold to the member state in question. This contrasts with the test under the law governing online trade mark infringement which looks at whether the goods or services are targeted at a particular Member State where jurisdiction is asserted.
- Parties may be sued for copyright infringement in courts of jurisdictions in which they have no domicile and have not acted, if their acts may cause damage to be suffered in the Member State of the court seized. Damage does not need to be specific to that Member State; it is sufficient that infringing material is accessible from it.
- This decision is good news for copyright owners wanting to take action against infringement of their copyright works in their own jurisdiction where infringing material has been made generally available on the internet in the European Union without specifically targeting their own jurisdiction.
- Although there is no need to show that sales of infringing material took place in the Member State seized, recovery of damages will still be limited to the damage suffered within the territory of the court seized, however that is to be calculated.
- This decision may encourage individual or SME copyright owners to take action in their own jurisdiction against infringers who are not based in the same Member State, with the familiarity and convenience of the local courts.
Ms Hejduk was a professional photographer specialising in pictures of architecture. She created photographs of the work of the Austrian architect, Georg W Reinburg, and gave him permission to use the photographs at a conference organised by EnergieAgentur. After that event, EnergieAgentur, posted the photographs on its website Energieregion.nrw.de in Germany to be viewed and also downloaded. They did not have the permission of Ms Hejduk, nor was she credited as the photographer. Ms Hejduk sued EnergieAgentur in the Austrian courts for copyright infringement.
EnergieAgentur disputed that the Austrian courts had jurisdiction, arguing that the website was not targeted at Austria and the fact that the website could be accessed from Austria was not sufficient to give the Austrian Courts jurisdiction. The Austrian Courts then referred the question of jurisdiction to the CJEU, seeking clarification of whether under Aricle 5(3) of the Regulation, the only courts with jurisdiction were the courts of the jurisdiction in which the defendant was established, and the courts of a Member State to which the website, according to its content, was directed.
Article 5(3) of the Regulation provides for a derogation from the usual rule that a Defendant must be sued in the place of its establishment. It states that "A person domiciled in a Member State may, in another Member State, be sued: in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur." Copyright infringement falls under this Article, but the extent of its reach in cases of online infringement has been uncertain.
In a previous case, Pinckney, the CJEU had confirmed that copyright was subject to territoriality such that copyright was capable of being infringed in each Member State according to the applicable substantive law. Pinckney concerned the sale of infringing CDs within the EU and the CJEU confirmed that jurisdiction was not dependent on sales being targeted at the particular Member State in which the copyright owner was suing: It was sufficient that the CDs were accessible and available in that jurisdiction. However, the copyright owner would be limited to recovering damage suffered in that jurisdiction. (This would be in comparison to suing the Defendant in the courts of its domicile, where damage would be quantified as a whole.)
In Hi Hotel, the CJEU had taken this further and had dealt with a case where there had been copyright infringement through the publication of books containing unauthorised photographs. In that case, the CJEU had confirmed again that it was sufficient that the books were accessible in the Member State for a copyright owner to sue in that Member State (provided that the rights were protected there).
However, in this case, Pez Hedjuk, the difference was that the infringing act was the unauthorised display of a copyright work online which was accessible from Austria, although the Defendant claimed, not targeted at Austria, being a German website. There was however nothing to prevent users in Austria from accessing or downloading the copyright work, but the extent of the damage in that location was unknown.
The Advocate General's opinion
Advocate General Cruz Villalon gave his opinion in September 2014, drawing a distinction between those infringement cases where damage could clearly be quantified in a jurisdiction, for example, through specific sales of physical items, and this case where the damage was not localised, but was of a general nature across many jurisdictions.
Having reviewed the Pinckney and Hi Hotel cases, and noting the difficulty of the generalised damage, the Advocate General suggested that in cases where there was easy to quantify localised damage, jurisdiction should be limited to the courts of the Member State in which the causal event occurred.
The CJEU decision
The CJEU rejected the reasoning of the Advocate General in this case. The CJEU agreed with the Advocate General that the place of causal event in a case such as this was the place where the infringing photographs had been placed on the website, Germany. However, they went on to focus on whether the Austrian courts could obtain jurisdiction by virtue of being the place where the alleged damage occurred. The CJEU again rejected the "targeted at" test for whether a website was causing damage in a particular jurisdiction. The damage in this case arose from the accessibility in Austria of the infringing website, and therefore the Austrian courts had jurisdiction.
The CJEU did however reiterate the limitation of this jurisdiction, which was that the Austrian courts could only award compensate for damage to copyright caused in Austria, given the territorial nature of the rights.
Finally, please note that with effect from 10 January, the Brussels Regulation has been recast. We produced a guide to jurisdiction under the new Regulation which can be accessed here. Article 5(3) referred to in the CJEU decision is now to be found at Article 7(2) of the recast Regulation.