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Thursday, 22 January 2015

BREAKING NEWS: CJEU confirms accessibility criterion to determine jurisdiction in online copyright infringement cases

When an unregistered right has been allegedly infringed online, what court is competent to hear and decide the resulting case? 

The answer to this question depends on the interpretation of the special rule of jurisdiction in what was until recently Article 5(3) of the Brussels I Regulation. The regulation has now been recast [why? the reasons are explained here], and this special rule is now enshrined in Article 7(2) of Regulation 1215/2012, also known as 'Brussels I Recast'.


♥ Brussels I, no matter whether original or recast version


Readers may be aware that the general rule of jurisdiction in Article 2 of the Brussels I Regulation [now Article 4 of Brussels I Recast] is that "persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State". However, "in matters relating to tort, delict or quasi-delict," one may be alternatively sued "in the courts for the place where the harmful event occurred or may occur".


Locating such "place" has not always been an easy task when it comes to unregistered rights such as personality rights or copyright. Indeed, even the Court of Justice of the European Union has struggled with the interpretation of Article 5(3) Brussels I/Article 7(2) Brussels I Recast, and has adopted a number of different criteria. 

With regard to personality rights, for instance, the criterion followed in eDate Advertising was that of the claimant's centre of interests. With regard to the database right, in Sportradar [here and here] the CJEU employed the intention to target approach, which it later rejected for copyright in Pinckney [herehere and here], preferring an accessibility criterion instead. The approach taken in Pinckney was subsequently confirmed in Hi Hotel [here].


The accessibility criterion has undergone criticism, notably by Advocate General (AG) Jaaskinen, who - among other things - had advised the CJEU in Pinckney, which ultimately did not follow his Opinion. The AG criticised the approach taken in Pinckney in his Opinion in Coty, in which he said that the CJEU approach would result in "a multiplication of courts" [para 61].


Besides the question whether the CJEU got it right in Pinckney, what would happen in the case of allegedly infringing content merely available without being also on sale (the latter was the case in Pinckney) on a website? What court would be competent to hear an action for copyright infringement according to the special rule of jurisdiction, considering that the damage in a case of this kind would be "delocalised"?


This is basically the core question that the CJEU had to address in Hejduk, a reference for a preliminary ruling from Austria.



Everything you could dream of
to summarise this case:
architecture + a photo + a Kat
Background

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.

Ms 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.



The Handelsgericht Wien was not so sure, and decided to stay the proceedings to seek guidance from the CJEU. The question referred was the following:

Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed in that a photograph was kept accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled, there is jurisdiction only
–    in the Member State in which the alleged infringer is established; and
–    in the Member State(s) to which the website, according to its content, is directed?

This is smart casual, not smart causal
as instead proposed by the AG
The AG Opinion

Last September AG Cruz Villalon released his Opinion [not yet available in English, but summarised here], in which he advised the Court to adopt yet another criterion to determine jurisdiction according to the special rule in Brussels I in cases in which the damage is delocalised.


In the AG's opinion, in fact, a case like Hejduk would differ from Pinckney on grounds that - unlike an online sale - [WARNING: Kat-translation!] "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)". 

Therefore, he advised the Court to "reserve ... the competence, at least that based on Article 5(3) ..., to the judges of the Member State in which the causal event [this being the place where the allegedly infringing content was uploaded] occurred."



The AG also noted that, unlike what happened in Pinckney, by interpreting Article 5(3) this way, even when applying the special rule of jurisdiction there would be no limitations as regards the damages that the claimant may seek.

Once again, accessibility suffices
The CJEU decision

Not only did the CJEU issue its decision in Art&Allposters [here], but today it also issued its 39-paragraph [the good old days of 211-paragraph rulings seem definitely gone] ruling in Hejduk, holding that:

"Article 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 in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated."


In other words: the CJEU rejected AG Cruz Villalon's proposed 'causal event' criterion and confirmed its earlier approach in Pinckney (and Hi Hotel), ie the so called 'accessibility criterion', including the related limitations as regards the damages that can be sought. With regard to the latter, this is because "the protection of copyright and rights related to copyright granted by the Member State of the court seised is limited to the territory of that Member State" [para 36].

The Court noted that the 'causal event' criterion, "defined as the event which gives rise to the alleged damage [which in the present case would be where EnergieAgentur has its seat, ie Germany, since this is where the company took and carried out the decision to place the infringing content online] ..., is not relevant for the purpose of attributing jurisdiction [though the reasons why this is (not) the case are not explained at any particular length] to the court before which a case such as that in the main proceedings has been brought." [para 23]

The Court once again confirmed that 'intention to target' is not part of Article 5(3) horizon. This is because, "unlike Article 15(1)(c) of [the Brussels I] Regulation No 44/2001 ... Article 5(3) does not require, in particular, that the activity concerned be ‘directed to’ the Member State in which the court seised is situated" [para 32]. This means that "for the purposes of determining the place where the damage occurred with a view to attributing jurisdiction on the basis of Article 5(3) ..., 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." [para 33]

Personally this Kat had some sympathy for AG Cruz Villalon the criterion proposed by the AG, especially damage-wise. In any case, a more detailed analysis of Hejduk will be provided soon, so: stay tuned!

2 comments:

Francis Davey said...

I wonder if I can help answer one of your questions. I've just been marking some LLM student work on Pinckney so it is very much in my mind.

The point often missed (and missed by the students) is that it is well established case law of the CJEU that the A5(3) (as was) jurisdiction the "place where the harmful event occurred or may occur" is actually two different places (or in fact sets of places), namely (i) the place where the event giving rise to the damage occurred and (ii) the place where the damage occurred.

This goes back to the decision in Mines de Potasse.

Pinckney and Hejduk deal only with the second of those "places". In other words, the copyright owner still has the option of suing in the jurisdiction of the event giving rise to the damage (and almost certainly for all the damage, not just the damage in that jurisdiction). Those cases only address the situation where suit is brought in a court on the basis of the place where the damage occurred.

This explains the court's remark in paragraph 23. They explain why in the following paragraphs. They say (usefully) that the event giving rise to the damage was the "activation of the process for the technical display of the photographs" (para 24).

On the facts that was where EnergieAgentur had its seat (para 25) and that was not the court seised so the only basis for deciding the special jurisdiction was the "place where the alleged damage occurred" (para 27). In other words the second of the Mines de Potasse categories.

Eleonora Rosati said...

Thanks for your comment, Francis.
It is interesting that AG Cruz Villalon appeared to exclude that, on the basis of Art 5(3) criteria, one could be sued alternatively (and indifferently) before the court of the place where the damage occurred or the place where the event giving rise to it occurred. At para 45 of his Opinion he in fact said (I am translating from Italian) that "in cases where the damage is «delocalised» and occurs over the internet in relation to copyright economic rights, the best option is to exclude the possibility that one can sue in the Member State in which the damage occurred and reserve [instead] the competence, at least the one based on Art 5(3), to the judges of the State in which the causal event occurred. Furthermore, such option does not exclude at all the competence based on Art 2 of the regulation, by which one can sue before the judges of the Member State in which the defendant is domiciled. Although in most cases these two criteria would lead to the same court (as is the case here), this will not always be the case."

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