The European Court of Justice (“ECJ”) has given a preliminary ruling on the jurisdiction of member states in relation to copyright materials published without the owner’s consent.
The Austrian case of Pez Hejduk v EnergieAgentur.NRW GmbH, Case C-441/13 concerned the use of photographs by a conference organiser on a website and the subsequent option to download these photos by website users. The owner of the photographs did not consent to this and sued the conference organiser for copyright infringement. It was argued that the Austrian Court did not have jurisdiction to hear the case on the basis that the conference’s organiser’s website had a .de domain name and was directed at German, not Austrian users.
The ECJ’s view was that under Article 5(3) of EC (44/2001) Brussels Regulation, proceedings could be brought in any member state where the relevant website was accessible. As set out in Pinckney v KDG Mediatech AG Case C-170/12, this was sufficient to seise the court, an activity did not need to be “directed” to that member state, i.e. through a country-specific, top-level domain name. However, the ECJ did make it clear that the courts where a website was accessible could only determine damages which had been incurred within their own member states.
This ECJ decision widens the potential jurisdiction further than in previous case law as unlike in Pinckney, there is no requirement for hard copies to have been received to act as proof of damage in a jurisdiction – anyone can log onto a website and download online materials onto their own devices. It is anticipated that we will see an influx of online copyright infringement claims, as a result.
For potential claimants, this decision is likely to be welcomed as it enables claimants to rely on the jurisdiction of their own member state in order to bring a claim. However, where there has been significant damage, it is likely that the claimant would still be well-advised to sue in the defendant’s member state, to enable it to claim all damages, rather than just those in the claimant’s member state.
For website owners, this decision acts as a reminder to ensure that all content displayed and available for download has the appropriate consents and licences in place. This decision will be particularly significant for online users with territory-specific rights, who will now have difficulty arguing that they did not directly target an excluded territory. It is now clear that mere “accessibility” of content in an excluded territory could enable a claim to be made.