Copyright: Europe Explores Its Boundaries - EU Expands Principle Of Pan-European Jurisdiction Over Copyright To Online Materials

One focus of the European Union's Digital Agenda is to break down barriers to cross-border exploitation of intellectual property rights. Consistent with this goal, the European Court of Justice (ECJ) has recently dismantled one such barrier to harmonisation by ruling that a copyright owner has the right to bring infringement proceedings in any EU country in which allegedly infringing material is made available or accessible online. The decision is welcome news for content owners, although there remain national limitations on the damage that can be recovered.

The case, Pez Hejduk v EnergieAgentur.NRW GmbH, arose as a result of the posting of allegedly infringing photos on a ".de" website by a German company. The Austrian photographer who owned the copyright to the photographs complained and brought a legal action in the Austrian courts. One element of EnergieAgentur's defence was that the claim should have been brought in the German courts where it was domiciled and where any alleged infringement occurred.

The ECJ held that the Austrian courts did have jurisdiction to hear the case based on the fact that EnergieAgentur's website was accessible in Austria, and it didn't matter that the website was not specifically directed at Austria. The Court did, however, add that the Austrian court would only be able to award a remedy based on damage caused within that EU Member State.

BACKGROUND

Under the EU's so-called Brussels Regulation (Reg. 44/2001), a person is entitled to be sued in the Member State of their domicile, regardless of nationality. However, Article 5(3) of that Regulation allows a person to bring a legal action in relation to a tort in other Member States in some circumstances, including in the courts of a Member State where any harmful events occurred. As a result, a person may sue in either the Member State where (1) the damage occurred or (2) the event that led to the damage occurred.

In a prior ruling (Peter Pinckney v KDG Mediatech AG (Case C-170/12)), the ECJ also ruled that the activity which leads to the damage need not be "directed at" the Member State where the court hearing the case is located.

FACTS

Pez Hejduk is a photographer who had taken photographs of buildings designed by an Austrian architect, Georg W. Reinberg. EnergieAgentur organised a conference in September 2004, at which Mr. Reinberg used Ms. Hejduk's photographs (with her permission) to illustrate his buildings and designs. Subsequently, EnergieAgentur...