Where to sue in online copyright infringement cases
One of the core principles of copyright is territoriality. But the internet is everywhere and so are possible copyright infringements. So which court has jurisdiction to hear a case about online infringement? This is the core question to which the Court of Justice of the European Union (CJEU) gave an answer in Hejduk (C-441/13).
Ms Hejduk is a professional photographer from Austria. Among her works are several photos of buildings by Austrian architect Georg W. Reinberg. In 2004, the German company EnergieAgentur uploaded a number of these photographs onto their website, without securing prior consent by Ms Hejduk.
Ms Hejduk then sued EnergieAgentur for copyright infringement and damages in the sum of 4,050 Euros before the Handelsgericht Wien (Vienna commercial court), Austria. Arguing that since its website has a .de top-level domain, it is not directed at Austria, the defendant (EnergieAgentur) claimed, thereby further arguing that the Handelsgericht Wien lacked international and local jurisdiction. The Handelsgericht stayed the proceedings and referred to the CJEU for a preliminary ruling.
Interpreting the Brussels I Regulation
The question the Handelsgericht referred to the CJEU concerns the interpretation of Art. 5 (3) of the Brussels I Regulation (now Art. 7 (2) Brussels I Recast). This regulation contains rules that courts in the EU apply to determine whether they are competent to hear a case. The general rule (Art. 2 Brussels I, Art. 4 in the recast version) is that "persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State" (this would be Germany and the Handelsgericht Wien thus could not hear the case according to this rule). But there are also special jurisdiction rules such as Art. 5 (3): "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."
CJEU case law has established that "the place where the harmful event occurred or may occur" can mean two things: 1) where the damages occurred 2) the place of the event giving rise to the damages. The court easily identifies the latter as the "activation of the process for the technical display of the photographs" (which also took place in Germany and thus would not give the Handelsgericht Wien jurisdiction). So the real question relevant to this case is: where do the damages occur in online infringement cases?
“Delocalized” damages and territoriality
Attorney general Cruz Villalón had argued (paragraph 41 - this Opinion is not available in English) that this is a case of "delocalized" damages, meaning that the mere fact that pictures are accessible from anywhere gives no direction as to where the damages occurred. He thus suggested (para 41, 45) excluding the place where the damages occurred and only using the so-called "causal event" criterion (that leads to the place of the event giving rise to the damages). Before the courts in the country identified in this manner (in this case Germany), the claimant would be allowed to bring his entire claim.
The CJEU seemed rather unimpressed with the concerns regarding "delocalized" damages. As in Pickney (CC-170/12) – a case regarding an author who sought damages because he claimed that his CD was copied and distributed over the internet without his consent – the court chose a criterion of "accessibility" to determine the places where damages occurred. The Pickney case was different because the damages could easily be measured in each country by looking at how many CDs were sold where. Nevertheless, the CJEU used the "accessibility criterion" again in Hejduk, ruling that Art. 5(3) of the Brussels I Regulation "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 [boldness was added by the author for emphasis] in its territorial jurisdiction."
The attorney general had argued that it would not be in line with the spirit of the directive (notably recital 15 which states the importance of "harmonious administration of justice") to allow proceedings in all countries where the infringing content is accessible. Following from the principle of territoriality, he said, courts can then only rule on the damage caused within the respective country. Yet, in cases of online infringement such as Hejduk, it would likely be impossible for the claimant to bring proof as to the exact extent of the damages caused in just one specific country. This means that there is a certain danger that courts would award too much and thereby exceed their competence, the attorney general concluded.
The CJEU elides the concerns of the attorney general stating that “The issue of the extent of the damage alleged by Ms Hejduk is part of the examination of the substance of the claim and is not relevant to the stage in which jurisdiction is verified” (para 35).
The decision leaves claimants in online infringement cases with many options for countries where they can bring suit – namely all countries in the EU where the content was accessible. It is not necessary, as EnergieAgentur appears to have expected, that a certain country is targeted with the possibly infringing content (the CJEU used this “intention to target” criterion in Sportradar C‑173/11, a case concerning the interpretation of the Database Directive 96/9/EC). However, this also means that different courts can rule on various aspects of the same dispute. The question that national courts will now need to settle is how to calculate the exact extent of the damages caused in just one country when the defendant only made the allegedly infringing content available online (and didn’t sell it).