Pez Hejduk v EnergieAgentur.NRW GmbH
The General Court of the European Union (CJEU) has confirmed that a person can sue for copyright infringement in the courts of their own Member State if the allegedly infringing material is accessible online in that Member State.
Photographs taken by Ms Hejduk, an Austrian photographer specialising in architectural photography, were made available without her consent on the website of a German company, EnergieAgentur. Ms Hejduk brought proceedings for copyright infringement in her native Austria. EnergieAgentur argued that under European law the proceedings could not be brought in Austria as the photographs were uploaded on a German website which was not directed at the Austrian market. EnergieAgentur argued that the mere fact that its website may be accessed from Austria was insufficient to confer jurisdiction on an Austrian court and that proceedings for copyright infringement should be brought in Germany.
Therefore the question before the CJEU was whether or not Ms Hejduk could sue for copyright infringement in Austria.
The Brussels Regulation sets down the rules for determining what Member State’s courts will have jurisdiction to hear cross-border disputes.
The general rule under the Brussels Regulation is that a person domiciled in a Member State will be sued in the courts of that Member State. Applying this rule, this would mean that EnergieAgentur should be sued in Germany. However, there is an exception to this rule which provides that a person may also be sued in another Member State “where the harmful event occurred or may occur”. The CJEU has interpreted this as meaning both the place where the damage occurs and the place where the event giving rise to the damage occurs. If these two places are different, then the person bringing the case can choose which to sue in.
The CJEU found that damage had occurred in Austria because Ms Hejduk’s photographs were accessible online there and her copyright in those photographs is protected by Austrian law (as it is throughout the European Union). The CJEU noted that copyright is subject to the principle of territoriality, meaning that it is capable of being infringed, in accordance with national law, in each Member State in which the allegedly infringing content is accessible online. However, a court of a Member State hearing a case of copyright infringement is limited to awarding damages only on the basis of the damage incurred in that Member State alone.
This decision confirms that copyright owners in Europe can bring proceedings for copyright infringement in the courts of their own Member State, provided that the allegedly infringing content is accessible online there. However, the level of damages awarded will be limited to an assessment of the damage incurred in that Member State alone. This may mean that copyright owners will sue in various Member States for a single act of copyright infringement in order to obtain the maximum award of damages.
Note: The Brussels Regulation has been recast since this decision and is now known as the “Brussels I Regulation (recast)”. The jurisdictional rule at issue in this case (Article 5(3) of the Brussels Regulation) is the same under the Brussels I Regulation (recast) (Article 7(2).