Access to content suffices: Online copyright infringers can be sued home and away
When copyright has been infringed online, what court is competent to hear and decide the case? The EU top court’s recent ruling provides clarity and states that online infringement cases can be heard where the infringing content is accessible.
The content right holders will be able to take legal action against the infringer in their home countries, but only regarding damage that occurred there.
The Court of Justice of the European Union (“CJEU”) ruling of 22 January 2015 (case C 441/13) Pez Hejduk v EnergieAgentur.NRW GmbH concerned the interpretation of Article 5(3) of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels I Regulation”, subsequently amended by the regulation 1215/2012 “Brussels I Recast”).
The CJEU was asked whether jurisdiction is allowed in the courts of an EU member state in an infringement action where infringing material (in this case, an infringing image) is accessible on a website in that Member State, although the website is hosted in another Member State.
WEBSITE TARGETED TO CERTAIN COUNTRY
The claimant Ms Hejduk is an Austrian professional photographer who has a specialisation in architectural photography. Among her works are several photos of buildings designed by Austrian architect Georg W. Reinberg. In 2004, EnergieAgentur.NRW GmbH, a German company, organised a conference where the architect W. Reinberg used Ms Hejduks photographs to illustrate his buildings. Ms Hejduk had authorised that particular use of her photographs, but she had not authorised any subsequent use of her photographs by EnergieAgentur. However, EnergieAgentur subsequently published the photographs on its website and allowed anybody to view and download them. Ms Hejduk sued EnergieAgentur for copyright infringement in Austria, seeking for damages. EnergieAgentur argued that Austrian courts did not have jurisdiction to hear the case and the competent court would be German courts, because its website is not directed at Austria. Furthermore, EnergieAgentur claimed that the mere fact that a website may be accessed from Austria is insufficient to confer jurisdiction on that court.
The Handelsgericht Wien requested the CJEU to consider the interpretation of Article 5(3) of the Brussels I Regulation (now article 7(2) Brussels I Recast) in this respect.
ACCESSIBILITY IS THE KEY - TARGETING IS NOT REQUIRED
The general rule set in the Brussels I Regulation is that persons domiciled in a Member State must, whatever their nationality, be sued in the courts of that Member State. According to this rule, the competent court to hear the case would have been in Germany and, thus, the Handelsgericht Wien would not have jurisdiction to hear the case in question.
However, Article 5(3) provides for a special jurisdiction rule, according to which: “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.”
Firstly, CJEU pointed out that copyrights in the EU are subject to the principle of territoriality, i.e. they are protected in each Member State separately. The court then noted the occurrence or the occurrence of damage and/or the likelihood of its occurrence arises from the mere accessibility of the infringing content in a Member State.
Since the website containing the infringing photographs could in this case be accessed in Austria and the claimant´s copyright was protected there, Austrian courts would have jurisdiction based on Article 5 (3) of the Brussels I Regulation. Moreover, the court explicitly stated that the applicability of the Article 5(3) jurisdiction rule does not require that the website containing the infringing content would be targeted at the jurisdiction of the court seized.
The court, therefore, steers away from the “intention to target” approach taken earlier in the Football Dataco case (C-173/11), which related to database rights, and followed its ruling in Pinckey (Case C 170/12, reported earlier here). A key difference to Pinckney is, however, that in the Hejduk case the infringing material was held available on the website, whereas in Pinckey the website only worked as a platform for selling physical infringing copies (CDs).
Therefore, the Hejduk case serves as a useful and welcome clarification, as it confirms that the accessibility criterion applies also if the infringing content is merely held available on a website.
DAMAGES ONLY OBTAINABLE FOR EACH COURT'S OWN JURISDICTION
Furthermore, the CJEU ruled that each national court can only rule on the damage caused in its Member State and, thus, the Austrian courts could only adjudicate on the damage suffered in Austria. On the other hand, the courts of other Member States could rule on the damage suffered in their Member States arising from the same set of facts. Also in this respect, the CJEU followed its decision in Pinckney.
WHAT IS THE PRACTICAL SIGNIFICANCE?
This decision and earlier case law by the CJEU leaves claimants in online copyright infringement cases with potentially multiple options for countries where they can bring proceedings against the alleged infringer. In that respect, the case serves the copyright holders, who can initiate proceeding in their home jurisdiction, thus making it easier to protect their rights.
However, this also means that different courts can rule on different perspectives of the same dispute, and in order to get full compensation for damages, numerous simultaneous proceedings in various jurisdictions may be needed.
For providers of online services, on the other hand, the risk of being sued abroad increases due to new ruling and the borderless nature of the internet: if your service is accessible in another EU member state and it alleged to contain infringing content, you may be forced to litigate away from home.