Unregistered Rights - where to sue
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Written on 23
January 2015
"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
Written by Michael Coyle
About the Author
Lawdit
Solicitors offer services and advice for litigation,
commercial contracts, Intellectual Property and IT legal agreements. We
are experts in commercial law with a heavy emphasis on Intellectual
Property, Internet and e-commerce law. Lawdit is a member of the
International Trademark Association, the Solicitors' Association of
Higher Court Advocates and we are the appointed Solicitors to the
largest webdesign association in the world, the United Kingdom Website
Designers Association.
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Article Published/Sorted/Amended on Scopulus 2015-02-27 09:05:14 in Legal Articles
