EUPillar C-387/12 Hi Hotel HCF SARL v Uwe Spoering (Fourth Chamber)

Summary

This case on the interpretation of Art 5(3) of Brussels I was referred to the CJEU in German proceedings between Mr Spoering (a photographer residing in Germany) and Hi Hotel (established in France). It concerned a claim for an order to cease an infringement of copyright and for compensation. Spoering, on behalf of Hi Hotel, took 25 photos of the hotel rooms and granted Hi Hotel the right to use the photographs in advertising brochures and on its website. There was no written agreement on the rights of use, but the invoice for the photographs contained the note ‘include the rights-only for the hotel hi’. Years later in Cologne, Spoering saw a book published by Phaidon-Verlag of Berlin containing reproductions of 9 of the photographs he had taken in Hi Hotel. He considered that Hi Hotel had infringed his copyright by passing the photographs to a third party and brought proceedings against Hi Hotel in Cologne seeking an order to cease an infringement of copyright and for compensation. Hi Hotel submitted that Phaidon-Verlag also had a place of business in Paris and that the hotel manager could have made the photographs available to that publisher. Hi Hotel stated that it did not know whether the publisher had then passed them on to its German sister company. The first instance court allowed Spoering’s claim, the appeal by Hi Hotel was unsuccessful but an appeal on a point of law was brought before the referring court. It asked the CJEU whether international jurisdiction of the German courts may be established under Art 5(3) of Brussels I on the assumption that Phaidon-Verlag of Berlin distributed the photographs in Germany in breach of copyright and that Hi Hotel assisted it in so doing by handing them over to Phaidon-Verlag of Paris. Hi Hotel argued that the request for a preliminary ruling was inadmissible because it was not relevant to the dispute in the main proceedings, since it was not determined yet whether there was a complete assignment of the copyright to Hi Hotel. But, the CJEU considered the request admissible because Hi Hotel had pleaded that the German courts do not have jurisdiction to hear the case and the referring court must necessarily rule on that plea before ruling on the substance so that the CJEU’s interpretation of Art 5(3) was necessary for the resolution of the main proceedings. The CJEU observed that the question in this case was where there are several supposed perpetrators of the damage allegedly caused to rights of copyright protected in the MS of the court seised (in this case Germany) whether Art 5(3) allows jurisdiction to be established with respect to one of those perpetrators who did not act within the jurisdiction of that court. The CJEU cited its decision in C 228/11 Melzer where it held that Art 5(3) does not allow jurisdiction to be established on the basis of the place of the causal event with respect to one of the supposed perpetrators of the damage who has not acted within the jurisdiction of the court seised. But, it continued its analysis because the present question was not limited to establishing jurisdiction on the basis of the causal event of the alleged damage. The CJEU reaffirmed its decision in C 170/12 Pinckney and further held that “Art 5(3) does allow the jurisdiction of that court to be established on the basis of the place where the alleged damage occurs, provided that the damage may occur within the jurisdiction of the court seised. If that is the case, the court has jurisdiction only to rule on the damage caused in the territory of the MS to which it belongs.” In following Pinckney the CJEU has clearly established that in a breach of copyright tort case the place of damage can only rule on the damage caused by the breach of copyright in its own territory. Given the territorial nature of copyright this is not unreasonable.