Unregistered Rights – where to sue

“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 must be interpreted as meaning that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.”

So said the European Court ( Fourth Chamber) in an interesting case referred to by an Austrian Court concerning a photographer who sued a copy who infringed his copyright. The infringer said they operated in Germany and did not focus on any other country.

The law

The Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (44/2001/EC) (Brussels Regulation) seeks to outline the allocation of jurisdiction and for the reciprocal enforcement of judgments between the member states.

Article 2 provides that, subject to the Brussels Regulation, For example persons domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state ie art 2 UNLESS Article 5 (3) applies ie “where the harmful event occurred or may occur” – this includes both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either!

The Facts

So an Austrian professional photographer issued a claim in Austria after discovering his photographs were available for viewing and download on its website. The alleged infringer argued the claim ought to be brought in Germany and no where else. The Austrian court referrred the following to the ECJ “Is Article 5(3) of [Regulation No 44/2001] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed by keeping a photograph 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, there is jurisdiction only:
– In the Member State in which the alleged perpetrator of the infringement is established; and
– In the Member State(s) to which the website, according to its content, is directed?”

So its a wide test but if the wrongdoing is in say Spain and you can show damage here you could bring a claim in the UK provided you can establish where the ‘casual event took place’ and you need to show that you suffered damage in your member state. For copyright/unregistered rights this may prove a lifeline

If you’d like to know more about this article please send an email to Michael Coyle quoting the article title and any questions you might have, alternatively call the office number on 02380 235 979 or send an enquiry through our contact form.

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