The European Court of Justice has shed some light on which Member State a copyright holder can file a claim in cases of online copyright infringement of their works.
The case of Pez Hejduk v. EnergieAgentur.NRW GmbH (2019) concerned Ms Hejduk, an Austrian professional photographer of architecture, who had created photographic works depicting the buildings of the Austrian architect, Georg W. Reinberg. As part of a conference organized in 2004 by EnergieAgentur (a German company), Ms Hejduk authorized Mr Reinberg to use her photographs in order to illustrate his buildings. Subsequently, EnergieAgentur, without Ms Hejduk’s consent and without providing a statement of authorship, made those photographs available on its website for viewing and downloading. Following this, Ms Hejduk brought an action against EnergieAgentur before the Handelsgericht Wien for breach of copyright.
The question that arose was whether the Viennese court had jurisdiction to hear the case. The Handelsgericht Wien decided to refer the following question to the Court for a preliminary ruling:
‘Is Article 5(3) of Regulation No 44/2001 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?’
Briefly, Regulation 44/2001 sets the rules of conflict of jurisdiction in civil and commercial matters. Article 2(1) provides that ‘subject to the provisions of this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’ One of the exceptions of this rule is set out in Article 5(3) which provides that, in matters relating to tort, delict or quasi-delict, a person domiciled in a Member State may be sued in another Member State, in the courts of the place where the harmful event occurred.
The place where the harmful event occurred.
The ECJ, in determining where the harmful event occurred, has in the past used different criteria in cases of online infringement of intangible rights. In relation to copyright infringement, the ECJ has ruled that the harmful event occurs in each Member State where the infringing site is accessible (Pinckney, C‑170/12).
In this case, the ECJ confirms and adopts once more this criterion of accessibility when it comes to online infringement of copyright and states 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.”
Therefore, where a website infringes a right holder’s copyright by uploading a work, the harmful event occurs in every Member State where the website is accessible. The place of residence of the infringer, the top-level domain, the location of the servers or whether the website targets a specific Member State are irrelevant when determining the international jurisdiction of a court in cases of online infringement of copyright.
Crucially, the court does not have jurisdiction to rule on the entire damage suffered by the copyright holder, but can only rule on the damage caused in the Member State within which the court is situated.
Practical Implications
The adoption of the accessibility criterion for the determination of the place of occurrence of the harmful event comes as good news to copyright holders. Among other things, it gives them the opportunity to opt to sue in the member state where the bulk of their interests are, where they have suffered most harm or where they are entitled to higher damages.
Nevertheless, the territorial fragmentation of damage poses difficulties in pursuing damages for the total amount. This is because claiming the amount of the total damages suffered would require the copyright holder to file lawsuits to all the member states to which the infringing website was accessible. There is also the risk of courts of different member states issuing conflicting decisions, which is exactly what the Regulation aims to deter.
