|Intention to target ...|
Ms Hejduk is a professional photographer who specialises in architectural photography, and resides in Austria. On 16 September 2004, on the occasion of a conference organised by EnergieAgentur [a German-established company], Austrian architect Georg W. Reinberg used a number of photographs, including one taken by Ms Hejduk, representing his works. This particular use had been authorised by the photographer. However, Ms Hejduk had not authorised subsequent use of her photograph by EnergieAgentur, that published it on its website www.energieregion.nrw.de, and allowed anybody to view and download it.
Thus Hejduk sued EnergieAgentur for copyright infringement in Austria (before the Handelsgericht Wien), seeking damages for EUR 4050. The defendant objected to the jurisdiction of Austrian courts, arguing that, since it is established in Germany and its webpage uses a .de top level domain, the competence to hear this case would be of German courts.
Why establishing jurisdiction is not easy
In the particular case of copyright, this special rule of jurisdiction has proved difficult to interpret, also because - unlike say trade marks [on which see the decision in Coty (here) as the most recent take of the Court of Justice of the European Union (CJEU) on jurisdiction] our favourite IP right is not subject to any formality. In addition, although subject to the principle of territoriality, copyright must be protected everywhere across the territory of the EU in compliance with the InfoSoc Directive.
|Neither, says the AG: |
it is the place of the 'causal event'
As a preliminary observation, the AG highlighted the peculiarities of the case at hand, which make it different from Pinckney.
Unlike in Pinckney in fact [a case concerning unauthorised reproduction and online distribution of musical CDs], Hedjuk concerns the rights over a photograph which has been made available on a website without the rightholder's consent.
The case of photographs has "very different characteristics from those of the online sale of a product", in that "it concerns a divulgation that can hardly be considered as occurring in a specific place that can be defined according to a territoriality criterion. On the contrary, the damage becomes «dematerialised», ie it becomes diffused and therefore is «delocalised», thus making it more difficult to determine the place where it occurred pursuant to Article 5(3)".
The AG observed that this case will allow the CJEU to determine whether, in circumstances like those at hand in which there has been a «delocalised» damage through the internet, one must follow the criterion adopted in Pinckney, or rather "explore a different way".
Therefore, the AG suggested that, "in the event of «delocalised» damages over the internet concerning copyright economic rights, the best option is to exclude the possibility to sue before the courts of the Member State where the damage occurred and reserve instead the competence, at least that based on Article 5(3) ..., to the judges of the Member State in which the causal event occurred. Furthermore, this option does not exclude at all jurisdiction based on Article 2 of the Regulation".
This conclusion looks pretty sensible to this Kat and is perhaps more workable than the targeting and accessibility criteria. We'll see if the CJEU agrees!