Where there were several supposed perpetrators of damage allegedly caused to copyrights protected in the member state of the court seised, article 5(3) of Council Regulation (EC) No 44/2001 did not allow jurisdiction to be established, on the basis of the causal event of the damage, of a court within whose jurisdiction the supposed perpetrator who was being sued did not act, but did allow the jurisdiction of that court to be established on the basis of the place where the alleged damage occurred, provided that the damage could occur within the jurisdiction of the court seised. If that was the case, the court had jurisdiction only to rule on the damage caused in the territory of the member state to which it belonged.

The Court of Justice of the European Union (Fourth Chamber) so held on a reference for a preliminary ruling from the Bundesgerichtshof (Germany) in proceedings between Hi Hotel HCF SARL, established in Nice, France, and the copyright holder, Mr Spoering, residing in Cologne, Germany, concerning a claim for an order to cease an infringement of copyright and for compensation.

The copyright holder was a German photographer who took 25 transparencies of interior views of various rooms on behalf of an hotel in France for advertising in brochures and on its website. There was no written agreement on the rights of use but on the invoice for the photographs, it stated that the rights were only for the hotel. When the copyright holder noticed an illustrated book with the title “Interior Architecture Worldwide”, published in Germany containing reproductions of nine of the photographs he had taken, he considered that the hotel had infringed his copyright in the photographs by passing them on to a third party. He brought proceedings in Germany against the hotel. The court of first instance allowed the claim, and the appeal by the hotel was unsuccessful. The hotel appealed and the Bundesgerichtshof (Federal Court of Justice), Germany, stayed proceedings since it was uncertain as to whether international jurisdiction of the German courts could be established on the basis of article 5(3) of Regulation No 44/2001.

THE COURT (Fourth Chamber) said that jurisdiction to hear an action in tort, delict or quasi-delict could be established in favour of the court seised of a claim for a finding of a breach of copyright, where the member state in which that court was situated protected the rights of copyright and the alleged damage could occur within the jurisdiction of the court seised: see Pinckney v KDG Mediatech AG (Case C-170/12) [2013] Bus LR 1313. The fact that damage could occur followed from the possibility of acquiring a reproduction of the work to which the copyright relied on attached in a bookshop located within the jurisdiction of the court seised. The handing over of the photographs in question gave rise to the reproduction and distribution of the photographs, and thereby to the possibility that the damage alleged might occur.