Online copyright infringement—where to sue

Online copyright infringement—where to sue
Who has jurisdiction over online copyright infringement taking place in a different member state to where the claimant resides? Adam Rendle, senior associate at Taylor Wessing, and Dr Dominik Thompson from the firm’s Vienna office, say the Pez Hejduk v EnergieAgentur.NRW GmbHCase C-441/13 case could reduce claimants' choice as to where to sue if it is followed by the Court of Justice of the European Union (CJEU).

What were the background facts to this reference to the CJEU?

Ms Hedjuk is a professional photographer who specialises in architectural photography and lives in Austria. During her career, she created several photographic works about buildings by the Austrian architect Georg W Reinberg.In 2004, Mr Reinberg publicly displayed some of these photographic works when giving a lecture at an event organised by EnergieAgentur.NRW GmbH (a German energy think tank). Later on, EnergieAgentur published the same photographs on its own website, which had a German top level domain (.de). While Ms Hejduk had given consent to the use at the lecture, she did not consent to publication on the internet.

Ms Hedjuk brought an action against EnergieAgentur.NRW at the Commercial Court of Vienna seeking compensation. EnergieAgentur.NRW challenged the jurisdiction of the Austrian court arguing that only a German court could hear the case.

What was the nub of the questions referred?

The referred questions concern how to decide which member state's courts have jurisdiction over online copyright infringement taking place under a top level domain of a different member state to the member state where the claimant resides.

The Austrian court saw only two possibilities for the claimant in this case and asked the CJEU to choose between them. Is the claimant only allowed to bring the action:

  1. In the member state where the alleged infringer is established?
  2. In the member state(s) to which the allegedly infringing website (according to its content) is directed?

Could the Attorney General (AG) and CJEU have arrived at any conclusion other than that the claimant can sue in Austria for the damage suffered there?

A claimant may always sue where an infringer is domiciled under the Jurisdiction Regulation

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