Pez Hejduk v EnergieAgentur.NRW GmbH
The General Court of the European Union (CJEU) has confirmed
that a person can sue for copyright infringement in the courts of
their own Member State if the allegedly infringing material is
accessible online in that Member State.
Photographs taken by Ms Hejduk, an Austrian photographer
specialising in architectural photography, were made available
without her consent on the website of a German company,
EnergieAgentur. Ms Hejduk brought proceedings for copyright
infringement in her native Austria. EnergieAgentur argued that
under European law the proceedings could not be brought in Austria
as the photographs were uploaded on a German website which was not
directed at the Austrian market. EnergieAgentur argued that the
mere fact that its website may be accessed from Austria was
insufficient to confer jurisdiction on an Austrian court and that
proceedings for copyright infringement should be brought in
Germany.
Therefore the question before the CJEU was whether or not Ms
Hejduk could sue for copyright infringement in Austria.
The Brussels Regulation sets down the rules for determining what
Member State's courts will have jurisdiction to hear
cross-border disputes.
The general rule under the Brussels Regulation is that a person
domiciled in a Member State will be sued in the courts of that
Member State. Applying this rule, this would mean that
EnergieAgentur should be sued in Germany. However, there is an
exception to this rule which provides that a person may also be
sued in another Member State "where the harmful event occurred
or may occur". The CJEU has interpreted this as meaning both
the place where the damage occurs and the place where the event
giving rise to the damage occurs. If these two places are
different, then the person bringing the case can choose which to
sue in.
The CJEU found that damage had occurred in Austria because Ms
Hejduk's photographs were accessible online there and her
copyright in those photographs is protected by Austrian law (as it
is throughout the European Union). The CJEU noted that copyright is
subject to the principle of territoriality, meaning that it is
capable of being infringed, in accordance with national law, in
each Member State in which the allegedly infringing content is
accessible online. However, a court of a Member State hearing a
case of copyright infringement is limited to awarding damages only
on the basis of the damage incurred in that Member State
alone.
This decision confirms that copyright owners in Europe can bring
proceedings for copyright infringement in the courts of their own
Member State, provided that the allegedly infringing content is
accessible online there. However, the level of damages awarded will
be limited to an assessment of the damage incurred in that Member
State alone. This may mean that copyright owners will sue in
various Member States for a single act of copyright infringement in
order to obtain the maximum award of damages.
Note: The Brussels Regulation has been recast since this decision
and is now known as the "Brussels I Regulation (recast)".
The jurisdictional rule at issue in this case (Article 5(3) of the
Brussels Regulation) is the same under the Brussels I Regulation
(recast) (Article 7(2).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
