Online Copyright Infringement - Jurisdiction / Where to Sue

A recent case between Pez Hejduk v EnergieAgentur NRW GmbH has considered the question of where to sue for infringement of online copyright.

The usual practice within the EU is to sue in the country within which the defendant is domiciled. Article 5(3) of the Brussels Regulation No 44/2200 provides an exception to this rule.

In the Pez case the claimant was an Austrian national and the defendant a German Company. The claimant, Ms Hejduk, is a photographer and she authorised Energie to use some of her photographs at a conference organised by Energie.

Energie continued to use the photographs on its website after the conference without the consent of Ms Hejduk and without including a statement of authorship.

Ms Hejduk sued Energie for copyright infringement through the Austrian Courts. Energie argued that the Austrian courts did not have jurisdiction because Energie is a German company and the photographs were uploaded in Germany onto a German website, directed to internet users in Germany.

Article 5(3) of the Brussels Regulation No 44/2001 provides that 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.

Two previous cases have interpreted Article 5(3) differently.   The question of whether the country in which the harmful event occurred is the country in which internet users are targeted or the country where the website was accessible was still unclear.

The issue was referred to the Court of Justice of the European Union (CJEU). The question referred was where work protected by copyright is owned by an Austrian national and is published on the German website of a German company where the website is accessible in Austria, can the Austrian copyright owner sue the German company in Austria. The CJEU held that the Austrian courts did have jurisdiction because the website was accessible to the public in Austria.

The judgment may make it easier for copyright owners to sue for infringement in all EU countries where the website is accessible.  The downside for copyright owners is that the CJEU also held that the court has jurisdiction only to rule on the damage caused in the member state were the damage occurred rather than damages caused throughout Europe.

For information and advice in respect of such issues please fee free to contact us on 0191 281 4000 or via our contact page.