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'.
I ♥ 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 [here, here 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
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.
|This is smart casual, not smart causal |
as instead proposed by the AG
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."
|Once again, accessibility suffices|
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: