Out-Law / Your Daily Need-To-Know

Copyright owners free to choose where to bring web infringement claims but restrictions placed on damages

Out-Law News | 27 Jan 2015 | 12:12 pm | 2 min. read

A ruling by the EU's highest court could mean that businesses have to take multiple cases across Europe if they want to claim damages for copyright infringement, an expert has said. 

Businesses claiming that their copyright has been infringed online could be forced to bring separate legal proceedings in each EU country where illicit copies of their works have been sold as a result of the ruling.

The Court of Justice of the EU (CJEU) said jurisdictional rules allow legal proceedings to be brought in countries where the allegedly infringing material can be accessed. However, it said the national courts handling those cases can only impose an order for damages that reflects the level of infringement in its own "territorial jurisdiction".

Intellectual property law expert Emily Swithenbank of Pinsent Masons, the law firm behind Out-Law.com, said: "It is perhaps disappointing for rights holders that the CJEU has declined to follow the opinion of the Advocate General to reserve jurisdiction to the member state where the causal event occurred which could have allowed for the full recovery of damages in a single set of proceedings."

"However, the decision to allow proceedings to be brought in the member state where a website is accessible, rather than only where it is targeted, gives rights holders greater freedom to forum shop. Albeit the damages recoverable will be limited to that jurisdiction only."

The CJEU was ruling in a case referred to it from Austria which concerned a professional photographer's objection to a company uploading images she had taken onto its website and making them available to view and download without her consent.

The photographer, Per Hejduk, sued EnergieAgentur for more than €4,000 in damages before the Commercial Court in Vienna. However, EnergieAgentur challenged the Austrian court's right to handle the case. It said that the court "lacked international and local jurisdiction", according to the CJEU's judgment. It said its '.de' website on which the images appeared had not been directed at Austria and that the Vienna court could not claim jurisdiction to hear the case because of "the mere fact" its website could be accessed from Austria.

The Commercial Court in Vienna asked the CJEU for help in interpreting the EU's Brussels Regulation, which sets out rules on jurisdictional issues, before hearing the case. The CJEU ruled that the court does have jurisdiction to hear Hejduk's case but cannot, if it decides to impose them, set damages for infringement outside of Austria.

"[The Brussels 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," the CJEU ruled. "That court has jurisdiction only to rule on the damage caused in the member state within which the court is situated."

"The courts of other member states in principle retain jurisdiction, in the light of [the Brussels Regulation] and the principle of territoriality, to rule on the damage to copyright or rights related to copyright caused in their respective member states, given that they are best placed, first, to ascertain whether those rights guaranteed by the member state concerned have in fact been infringed and, secondly, to determine the nature of the damage caused," the CJEU said.

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