The UK IPO reports a new interesting preliminary reference on cross border jurisdiction in copyright law before the Court of Justice of the EU - Hejduk C-441/13. As Pinckley C-170/12 case is very likely to be rejected by the CJEU due to speculation of referring French court, it is good to know that similar questions popped up again. Now coming from Austria - Handelsgericht Wien.
The case concerns a request for a preliminary ruling regarding a claim by a photographer based in Vienna for infringement of copyright in photographs by a company based in Dusseldorf. The applicant believes that the Vienna courts have jurisdiction as the website on which the photographs were published by the Defendant is accessible in Vienna. The following question is referred for a preliminary ruling pursuant to Article 267 TFEU:
'Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed in that a photograph was kept accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled [Or. 2], there is jurisdiction only
- in the Member State in which the alleged infringer is established; and
- in the Member State(s) to which the website, according to its content, is directed?'
The question is unfortunately phrased very broadly, so it does not really tell us a lot about circumstances of the online publication of photos. Despite this, we can already anticipate likely result of the case from Pinckey. Advocate General here came to following alternative conclusions in case CJEU accepts the case.
First, in case of infringement of a communication to the public right, the place where the event giving rise to the damage occurred (Handlungsort) is the place of establishment of the advertiser = the place where the activation of the display process is decided (paras 57, 58 inspired by Wintersteiger). Second, the place where the damage occurred (Erfolgsort) is the place, where the activity of the website was directed (para 64). The AG then notes that criteria already known from consumer cases, namely Pammer C‑585/08 and Hotel Alpenhof C‑144/09 (analyzed on this blog here), should apply also to this head of the jurisdiction. The criteria should be applied with certain flexibility (para 66). The AG also notes that both mere accessibility criterion or eDate Advertising center of interests criterion need to be rejected to prevent both forum shopping and generalization of forum auctoris jurisdiction.
Hence, if CJEU follows Pinckey Opinion in Hejduk case, most likely, the following criteria will be copied from Hotel Alpenhof:
In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with them.I will keep updating this post when I receive some background information about Hejduk case.
The following matters, the list of which is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader’s activity is directed to the Member State of the consumer’s domicile, namely
a) the international nature of the activity,
b) mention of itineraries from other Member States for going to the place where the trader is established,
c) use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established with the possibility of making and confirming the reservation in that other language,
d) mention of telephone numbers with an international code,
e) outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other Member States,
f) use of a top-level domain name other than that of the Member State in which the trader is established, and
g) mention of an international clientele composed of customers domiciled in various Member States.
It is for the national courts to ascertain whether such evidence exists.
On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.