Ms Hejduk, the claimant, is a professional photographer of architecture. At of a conference organised by EnergieAgentur, the architect Mr Reinberg, whose works Ms Hejduk had photographed, used her photographs in order to illustrate his buildings, which he was authorised to do by Ms Hejduk. EnergieAgentur subsequently, without Ms Hejduk’s consent, made those photographs available on its website for viewing and downloading. Ms Hejduk, claiming infringement of her copyright, brought an action before the Vienna Commercial Court. Ms Hejduk relied on Article 5 (3) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels-I-Regulation”) to justify jurisdiction of the Austrian Court. EnergieAgentur raised an objection that the Court lacked international and local jurisdiction, claiming that its website is 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. Accordingly, the Vienna Commercial Court decided to stay the proceedings and to refer the following question to the Court of Justice of the European Union:

Is Article 5 (3) Brussels-I-Regulation 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?

The Court of Justice approached the question by referring to its established case law, according to which the term “place where the harmful event occurred or may occur” in Article 5 No. 3 Brussels-I-Regulation covers both the place where the damage occurred and the place of the event giving rise to it. This means that the claimant can sue the defendant – in addition to the courts of the defendant’s domicile – in either of those two places.

The Court recognised that the rights allegedly to have been infringed (here: the rights relating to the photographs) are territorial in nature. As regards the “place of the event” giving rise to the infringement, the Court explained that

[24] (…) the activation of the process for the technical display of the photographs on that website must be regarded as the causal event. The event giving rise to a possible infringement of copyright therefore lies in the actions of the owner of that site.

For the present case, that event can be localised “only at the place where EnergieAgentur has its seat, since that is where the company took and carried out the decision to place photographs online on a particular website.” Thus, jurisdiction of the Vienna Commercial Court could not be based on the place where the event giving rise to the damage occurred.

Turning to the second possible basis for jurisdiction of the Vienna Court, the place where the alleged damage occurred, the Court of Justice of the European first stated that it was necessary to determine, with regard to the Austrian rights involved here, whether the damage may occur in a state other than the place where the defendant took the decisions and placed the photos on the website. The defendant argued that as its website was not directed at Austria there could not have been any damage in Austria. The Court however held that, for purposes of jurisdiction based on the place where the damage occurred, the mere accessibility of the website in the Member State (here: in Austria) was sufficient:

[32] It is clear from the Court’s caselaw that (…) Article 5 (3) Brussels-I-Regulation does not require, in particular, that the activity concerned be ‘directed to’ the Member State in which the court seized is situated.

[34] In circumstances such as those at issue in the main proceedings, it must thus be held that the occurrence of damage and/or the likelihood of its occurrence arise from the accessibility in the Member State of the referring court, via the website of EnergieAgentur, of the photographs to which the rights relied on by Ms Hejduk pertain.

The Court added that the issue of the extent of the damage is part of the examination of the substance of the claim and is not relevant to the stage in which jurisdiction is verified.

Finally, the Court reiterated its approach to jurisdiction in cases of the kind involved here, namely that the jurisdiction of the court seized on the basis of the place where the damage occurred is limited to the Member State where the court is located.

The answer of the Court thus was as follows:

Article 5 (3) Brussels-I-Regulation (…) 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 seized, 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.

Remarks
The Hejduk judgment is part of a series of judgments of the Court dealing with the issue of jurisdiction over a defendant located in a Member State different from the forum state. The novel element in the present case is that “occurrence of damage”, for jurisdictional purposes, may be established on the mere accessibility of the website displaying infringing content in the forum state.

For claimants seeking enforcement of their national IP rights in the European Union the message is clear: Jurisdiction will always be available in the Member State where the right is protected, even if the alleged infringement is limited to placing infringing items on a website which is merely accessible in the forum state, without being directed at that state. Of course, whether and to which extent the claimant will recover damages depends on the applicable law – which will be the forum law because it is the law of the Member State where the right is protected.

When the infringement involves an EU-wide right, such as a Community trademark or a Community design, the rules are different – it follows from the Court’s judgment of June 5, 2014 (Case C-360/12 – Coty that jurisdiction on the basis of infringing acts committed is available only in the Member State where the infringer acted, not in the Member Stare where the damage occurred (see BARDEHLE ­PAGENBERG IP Report 2014/II).Ms Hejduk, the claimant, is a professional photographer of architecture. At of a conference organised by EnergieAgentur, the architect Mr Reinberg, whose works Ms Hejduk had photographed, used her photographs in order to illustrate his buildings, which he was authorised to do by Ms Hejduk. EnergieAgentur subsequently, without Ms Hejduk’s consent, made those photographs available on its website for viewing and downloading. Ms Hejduk, claiming infringement of her copyright, brought an action before the Vienna Commercial Court. Ms Hejduk relied on Article 5 (3) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels-I-Regulation”) to justify jurisdiction of the Austrian Court. EnergieAgentur raised an objection that the Court lacked international and local jurisdiction, claiming that its website is 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. Accordingly, the Vienna Commercial Court decided to stay the proceedings and to refer the following question to the Court of Justice of the European Union:

Is Article 5 (3) Brussels-I-Regulation 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?

The Court of Justice approached the question by referring to its established case law, according to which the term “place where the harmful event occurred or may occur” in Article 5 No. 3 Brussels-I-Regulation covers both the place where the damage occurred and the place of the event giving rise to it. This means that the claimant can sue the defendant – in addition to the courts of the defendant’s domicile – in either of those two places.

The Court recognised that the rights allegedly to have been infringed (here: the rights relating to the photographs) are territorial in nature. As regards the “place of the event” giving rise to the infringement, the Court explained that

[24] (…) the activation of the process for the technical display of the photographs on that website must be regarded as the causal event. The event giving rise to a possible infringement of copyright therefore lies in the actions of the owner of that site.

For the present case, that event can be localised “only at the place where EnergieAgentur has its seat, since that is where the company took and carried out the decision to place photographs online on a particular website.” Thus, jurisdiction of the Vienna Commercial Court could not be based on the place where the event giving rise to the damage occurred.

Turning to the second possible basis for jurisdiction of the Vienna Court, the place where the alleged damage occurred, the Court of Justice of the European first stated that it was necessary to determine, with regard to the Austrian rights involved here, whether the damage may occur in a state other than the place where the defendant took the decisions and placed the photos on the website. The defendant argued that as its website was not directed at Austria there could not have been any damage in Austria. The Court however held that, for purposes of jurisdiction based on the place where the damage occurred, the mere accessibility of the website in the Member State (here: in Austria) was sufficient:

[32] It is clear from the Court’s caselaw that (…) Article 5 (3) Brussels-I-Regulation does not require, in particular, that the activity concerned be ‘directed to’ the Member State in which the court seized is situated.

[34] In circumstances such as those at issue in the main proceedings, it must thus be held that the occurrence of damage and/or the likelihood of its occurrence arise from the accessibility in the Member State of the referring court, via the website of EnergieAgentur, of the photographs to which the rights relied on by Ms Hejduk pertain.

The Court added that the issue of the extent of the damage is part of the examination of the substance of the claim and is not relevant to the stage in which jurisdiction is verified.

Finally, the Court reiterated its approach to jurisdiction in cases of the kind involved here, namely that the jurisdiction of the court seized on the basis of the place where the damage occurred is limited to the Member State where the court is located.

The answer of the Court thus was as follows:

Article 5 (3) Brussels-I-Regulation (…) 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 seized, 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.

Remarks

The Hejduk judgment is part of a series of judgments of the Court dealing with the issue of jurisdiction over a defendant located in a Member State different from the forum state. The novel element in the present case is that “occurrence of damage”, for jurisdictional purposes, may be established on the mere accessibility of the website displaying infringing content in the forum state.

For claimants seeking enforcement of their national IP rights in the European Union the message is clear: Jurisdiction will always be available in the Member State where the right is protected, even if the alleged infringement is limited to placing infringing items on a website which is merely accessible in the forum state, without being directed at that state. Of course, whether and to which extent the claimant will recover damages depends on the applicable law – which will be the forum law because it is the law of the Member State where the right is protected.

When the infringement involves an EU-wide right, such as a Community trademark or a Community design, the rules are different – it follows from the Court’s judgment of June 5, 2014 (Case C-360/12 – Coty that jurisdiction on the basis of infringing acts committed is available only in the Member State where the infringer acted, not in the Member Stare where the damage occurred (see BARDEHLE ­PAGENBERG IP Report 2014/II).