Yet another implication of digital copying – conflict of laws with respect to jurisdiction and copyright infringement

by Alina Trapova

Ms Hejduk is a professional photographer of architecture and she is domiciled in Austria. She is also the creator of the photographic works depicting buildings by a famous Austrian architect – Georg W. Reinberg. At a conference in 2004, organised by EnergieAgentur, the architect used some of Ms Hejduk’s photographs illustrating his buildings. This use was authorised by the photographer. However, at a later stage EnergieAgentur, without Ms Heijduk’s consent, made these photographs available for viewing and downloading through their website.

Ms Heijduk brought an action against EnergieAgentur in the Austrian courts for copyright infringement. The defendant, being a German company, argued that the Austrian court does not have jurisdiction over the issue due to the fact that the website was targeted at the German audience by using the .de domain extension. The case was referred to the CJEU.

 

Legal context

The Brussels I Regulation deals with issues of jurisdiction under European Law – this instrument essentially addresses the question of whether a defendant can be sued in the courts that the matter is brought to. Article 2(1) of the Regulation establishes the general jurisdiction rule whereby a person will be sued in the court of a Member State if he is domiciled in that Member State. According to this, the court with jurisdiction would have been the German court. Nevertheless, there are special jurisdiction rules with respect to particular circumstances such as a dispute over a contract, tort, consumer or other categories of law.

The current situation falls under the special category of tort law – article 5(3). According to this a person may be sued in the courts of a Member State where the damage occurred or in the courts of the Member State where the event giving rise to the damage took place. The decision is up to the claimant’s discretion. Simply put – Ms Heijduk can sue in the courts where EnergieAgentur did the wrong or where she felt the harmful effect of their action.

It must be noted that the dispute is not one of contract law because of the ratio in Kalfelis v Schroeder – if there is a contractual relationship between the two parties or the claim arises out of an agreement, then one is bound to bring the case under contract law. Here, there is no contractual relationship between the two parties and therefore the issue is brought under tort – article 5(3).

The decision

The CJEU held that the accessibility of a website within Austria was sufficient to grant the Austrian court jurisdiction over the issue on the basis of the place where the damage occurred. The Austrian court however has jurisdiction only over the damage that has been caused in Austria, i.e. the harmful effect that Ms. Heijduk felt in Austria.

In reaching this conclusion the CJEU set out the rule under article 5(3) and in turn examined what will be the place of the event giving rise to the damage and the place where the damage occurred.

The place of the event giving rise to the damage

With regards to the first category the court noted that ‘the activation of the process of the technical display of the photographs on that website must be regarded as the causal event’. In the present case this activation happened where EnergieAgentur has established its company seat ‘since that is where the company took and carried out the decision to place photographs online on a particular website’. Therefore, by virtue of this the Austrian court did not have jurisdiction because the company’s seat is in Germany.

The place where the damage occurred

Due to the fact that the website was accessible in Austria, the CJEU held that Austria was the place where the damage occurred and the Austrian court may have jurisdiction over the issue. The defendant tried to argue that the website was not targeted at the Austrian audience (.de), but it must be emphasised that in contrast to the consumer law provisions listed under article 15 of the Brussels I Regulation, there is no requirement of targeting a jurisdiction under the torts rules. As a result, ‘it is irrelevant that the website at issue in the main proceedings is not directed at the Member State in which the court seised is situated’.

However, it must be noted that following Pinckney and eDate Advertising the Austrian court will have jurisdiction to rule only over the damages that occurred in Austria.

 

Comment

The consequence of this ruling is that due to the fact that most websites (regardless of their domain name extension) will be accessible in most European jurisdictions, there will be significant rise in situations where the claimants in similar circumstances will sue in their home jurisdiction with respect to an act done by a defendant in another Member state.

As a result of this, one immediate question comes to mind – putting yourselves in the shoes of EnegieAgentur, is geo-blocking the solution preventing the litigation?

 

The case in full can be found here.

 

Alina Trapova
Assistant Editor, QMJIP