Online copyright infringement - Where can you sue or be sued?

The court of Justice of the European Union (CJEU) confirms that copyright holders have flexibility in choosing the forum for copyright infringement proceedings. It is sufficient that the alleged infringing content is accessible online from a Member State, for the courts situated in that Member State to have jurisdiction.

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In the case considered by the CJEU, an Austrian photographer brought an action for damages for copyright infringement against a German-based defendant that had made her photographs available online without her consent. Even though the act of uploading the photographs took place in Germany, the website used the German ".de" top-level domain and the website was not directed at potential Austrian customers, the CJEU held that photographer could bring legal actions against the German company in Austria. However, in these cases the national court can only determine and award damages occurred in the Member State where the court is situated. This would be different if proceedings were taken against the defendant in the courts of its domicile.

Copyright differs at this point from other intellectual property rights, including trademarks, where the sale of goods or services must be targeted at the particular Member State where jurisdiction is asserted.

For copyright owners this is an advantage, as they can take legal action in their own jurisdiction regardless of where the infringer is domiciled or the where act is committed. The recovery of damages will however be limited to the damages suffered within the territory of the court seized. Depending on the circumstances, the legal venue must therefore still be carefully chosen if the copyright holder has suffered loss in a different country or in more than one country.

For parties publishing content online the judgement implies that they may face legal proceedings in countries where they are not active.  Some protection from aggressive forum shopping is provided by the limitation in awarding damages arising in other jurisdictions. However, copyright holders may also apply a strategy of initiating  proceeding in their own jurisdiction and then follow up with additional proceedings in other jurisdictions.

Source: The CJEU's ruling in the Pez Hejduk-case (C-441/13), see also the Pinkney- case (C-170/12). The ruling concerned the interpretation of Regulation 44/2001, based on the Brussels Convention, but is also relevant for Norway as the Lugano Convention that Norway has ratified has corresponding provisions.