Is mere accessibility in a Member State of an allegedly copyright-infringing image on a website enough to confer jurisdiction on the courts of that Member State to hear an infringement action? The answer is, in short, yes. But why?
In a judgment handed down last week in the case of Pez Hejduk v EnergieAgentur.NRW GmbH (Case C 441/13), the CJEU has held that the court of a Member State in which an allegedly infringing copyright work is merely accessible online does have jurisdiction to hear an infringement action.
The jurisdiction in this case arises from 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 (the “Judgments” or “Brussels I” Regulation). It is based on the concept of “the place where the damage occurred” (explained below).
- The case concerned the posting of copyright images online without the consent of the copyright owner (but is likely to be applicable to unauthorised postings of all kinds of copyright works online).
- The CJEU, following its earlier decision in the Pinckney case, has also confirmed that where jurisdiction is based on the accessibility criteria alone, the court hearing the action may only rule on the damage caused in that Member State. This consistency is most welcome but still means that obtaining relief across the EU may require multiple law suits.
- Today’s decision does not affect the jurisdiction of national courts to try copyright infringement cases based on the domicile of the alleged infringer; jurisdiction based on the defendant’s domicile being the fundamental principle of the Brussels Regulation.
- And it also does not say, in terms, whether courts having jurisdiction to try copyright infringement actions on the basis of the defendant’s domicile can also hear claims for the same defendant’s equivalent acts of infringement in other Member States. In relation to the UK, this was answered in the positive by the UK Supreme Court in the 2011 Lucasfilm (stormtrooper helmet) case, but a ruling of the CJEU on this specific point would be very helpful.
Brief legal primer
The Judgments Regulation has direct effect in all EU Member States and sets down common rules aimed at the consistent allocation of jurisdiction between Member State courts in civil cases which involve entities and acts/omissions in more than one Member State.
In intellectual property cases which do not concern the validity of registered or deposited rights (such as patents, trademarks and designs), it is possible to bring an action for infringement:
- In the country where the alleged infringer is domiciled – Art.2(1) [Art.4(1)] – this is the fundamental principle referred to above; or
- In “the place where the harmful event occurred or may occur” – Art.5(3) [Art.7(2)]
The CJEU has in past cases clarified the term “the place where the harmful event occurred or may occur”. It covers both:
- the place where the damage occurred; and
- the place of the event giving rise to the damage,so that under Art. 5(3) [Art.7(2)] the alleged infringer may be sued, at the option of the claimant, in the courts in either of those places, as well as in their country of domicile under Art.2(1)[Art.4(1)].
The claimant, Ms Hejduk, an architectural photographer living in Austria, permitted some of her photographs to be used as part of a conference organised by the defendant, EnergieAgentur, a German company. After the conference, EnergieAgentur without Ms Hejduk’s consent and without providing a statement of authorship, made those photographs available on its website for viewing and downloading. Ms Hejduk sued EnergieAgentur for copyright infringement in the court of Vienna, seeking damages and an order requiring EnergieAgentur to pay for the publication of the judgment.
An issue arose as to whether the Austrian courts had jurisdiction to hear the case. Ms Hejduk relied on Article 5(3), summarised above. EnergieAgentur argued that because its website was not directed at Austria, the Austrian courts had neither international nor local jurisdiction.They said that the mere fact that their website was accessible from Austria was insufficient to confer jurisdiction on the Austrian court.
The Vienna court decided to stay the proceedings and referred a question to the CJEU for a preliminary ruling on these issues.
As is often the case, the CJEU decided to re-cast the question actually asked by the Austrian court, but (whilst no doubt irritating the judges in Vienna) for present purposes the difference in the form of the question is not of particular concern. Both questions boil down to: is mere accessibility in a Member State of an allegedly copyright-infringing image on a website enough to confer jurisdiction on the courts of that Member State to hear an infringement action? The answer is, in short, yes. But why?
Austria was not, the CJEU said, the place giving rise to the damage, and so jurisdiction could not be made out on this basis. That place was Germany, because “the activation of the process for the technical display of the photographs … must be regarded as the causal event”. That causal event, the court explained, occurred at the place where EnergieAgentur took and carried out the decision to place the photographs online; in other words, in the country where the company had its seat. (On the facts of this case the effect of this leads to the same place as the domicile test would have done.)
However, due to the fact that the photographs could be accessed, Austria was a place where the alleged damage may have occurred because Ms Hejduk’s copyright was protected there. In so finding, the court re-iterated its October 2013 ruling in Pinckney (a case concerning the online marketing of CD’s bearing infringing copies of sound recordings which were sold into France) that the place where the alleged damage occurred may vary according to the nature of the right allegedly infringed but, in any event, the likelihood of damage occurring in a particular Member State is subject to the condition that the right whose infringement is alleged is protected in that Member State.
In reaching this conclusion the CJEU rejected EnergieAgentur’s defence that its website at the .de top level domain was not directed at Austria. This was on the basis that the jurisdiction provided by Art.5(3) does not require that the relevant activity is directed to the country of the court seized of the action. Therefore, whether or not their site was directed to (or targeted at) Austria was irrelevant.
Finally the court, again following the Pinckney ruling, stated that courts seised on “the place where the damage occurred” basis only have jurisdiction to rule on the damage caused within their own Member State. The court also clarified that courts of other Member States can decide cases arising from the same act(s) in relation to alleged infringements of national copyright law in their own Member States and on the nature of the damage caused in them.
The full text of the CJEU’s ruling is as follows:
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 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 seised, 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.
1. Available here
2. Lucasfilm Limited v Ainsworth  UKSC 39
3. The Judgment Regulation has recently been “re-cast” by Regulation (EU) No. 1215/2012, which applies to proceedings instituted after 9 January 2015. This re-casting has not resulted in any material change to the key provisions decided on by the CJEU today. (In this newsflash references to articles in square brackets are to the equivalent provisions of the re-cast Brussels Regulation).
4. Case No C-170/12