Referring court and Member State
Austria, First Instance, Handelsgericht Wien
Summary
The case was referred to the CJEU in Austrian proceedings between Ms Hejduk, a professional photographer of architecture domiciled in Vienna, and EnergieAgentur. NRW GmbH, having its seat in Düsseldorf (Germany), concerning an application for a declaration of an infringement of a right related to copyright as a result of photographs created by Ms Hejduk being made available on the website of EnergieAgentur without her consent. Hejduk created photographic works of buildings of the Austrian architect, Georg Reinberg and as part of a conference organised by EnergieAgentur, Reinberg used her photographs to illustrate his buildings with her authorisation. EnergieAgentur made those photographs available on its website for viewing and downloading without Hejduk’s consent and without providing a statement of authorship. According to Hejduk, this was an infringement of her copyright and she sued EnergieAgentur in the Vienna Commercial Court for damages and for authorisation to publish the judgment at the expense of the defendant. She relied on Art 5(3) of Brussels I for jurisdiction, but EnergieAgentur raised an objection to jurisdiction as its website was not directed at Austria and the mere fact that a website may be accessed in Austria is insufficient to confer jurisdiction on the Austrian courts. The court referred a question to the CJEU that whether, in the event of allegation of an infringement of copyright committed over the internet where the website being operated under the top-level domain of a MS other than that in which the proprietor of the right is domiciled, there is jurisdiction only in the MS in which the alleged perpetrator of the infringement is established; and in the MS(s) to which the website, according to its content, is directed under Art 5(3). The CJEU noted that although copyright rights must be automatically protected, in particular in accordance with Directive 2001/29, in all MSs, they are subject to the principle of territoriality and thus capable of being infringed in each MS in accordance with the applicable substantive law. The CJEU interpreted the causal event giving rise to the alleged damage as being the activation of the process for the technical display of the photographs on the website which took place at the seat of the company in Germany and therefore does not attribute jurisdiction to the court seised. The CJEU then examined whether the court may have jurisdiction on the basis of the place where the alleged damage occurred. The CJEU referred to its case law ruling that Art 5(3) does not require, in particular, that the activity concerned be ‘directed to’ the MS in which the court seised is situated which means that it is irrelevant whether the website in question is directed at Austria. The place of damage is any place where the photographs placed on the website are accessible. Applying the criterion in C 170/12, the CJEU held that the courts of each MS which is a place of damage in principle have jurisdiction only to rule on the damage to copyright or rights related to copyright caused in their own MS. The AG had proposed to the CJEU that only the first limb of Art 5(3) should apply in cases where the breach of copyright or a related right occurs by something appearing on the internet which can be accessed in any MS. If the AG’s proposal had been followed, then the Art 5(3) jurisdiction would often be the same as the defendant’s domicile under Art 2 as it was in this case.