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Another lesson in jurisdiction for online copyright infringements

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03/02/2015

The Court of Justice of the European Union (CJEU) has given a ruling on the question of whether jurisdiction is conferred on the courts of an EU Member State to hear an infringement action where an allegedly copyright-infringing image is accessible on a website in that Member State, but the website is hosted in another Member State.

Article 5(3) of the so-called Brussels I Regulation [1] on the recognition and enforcement of judgments in civil and commercial matters states that, in copyright disputes, it is possible to bring an action for infringement “in the place where the harmful event occurred or may occur” or where the alleged infringer is domiciled.

In Pez Hejduk v EnergieAgentur [2] the claimant, a photographer living in Austria, consented to some of her photographs to be used at a conference organised by the defendant. After the conference, the defendant, without the claimant’s consent, made those photographs available for downloading on its website. The defendant argued that the mere fact that the website was accessible from Austria was not sufficient to confer jurisdiction on the Austrian court. The Vienna Court referred the issue to the CJEU.

The CJEU considered that, as the photographs could be accessed in Austria, Austria was a place where the alleged damage may have occurred because the claimant’s copyright was protected there. The CJEU emphasised that 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. It rejected the defendant’s submission that its website (with the German .de domain) was not directed at Austria. The jurisdiction conferred by Article 5(3) does not require that the relevant activity is directed to the country of the court seized of the action. It was immaterial whether or not the website was actually directed at Austria.

As a further point, the CJEU ruled that each national court can only rule on the damage caused in its Member State (e.g. the Austrian courts could only adjudicate on the damage suffered in Austria). The courts of other Member State could rule on the damage suffered in their Member State arising from the same set of facts.

The case can be contrasted with Omnibill (Pty) Ltd v EGPSXXX Ltd (in liquidation) [3], which we reviewed in our last newsletter, concerning the test for determining whether a website is targeted at the UK.

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[1] Council Regulation (EC) No 44/2001
[2] Case C 441/13
[3] [2014] EWHC 3762 (IPEC)

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