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Taking photos of buildings is
easy: they don't keep moving
around ... |
Oh what a tangle the single European market remains in, when we have a single market in which pan-European and national IP rights coexist and in which enforcement can depend more on the accident of geography than on any meaningful correlation between the act done and the consequence of doing it. A good example is
Case C‑387/12,
Hi Hotel HCF SARL v Uwe Spoering, a reference for a preliminary ruling from the German Bundesgerichtshof, the Fourth Chamber of the Court of Justice of the European Union (CJEU), which had to address a set of the sort of facts that crop up surprisingly often in real life but which generally don't get litigated on account of the expense, inconvenience and uncertainty inherent in them.
Back in February 2003
Uwe Spoering, a photographer, took 25 transparencies of interior views of various rooms in the Hi Hotel in Nice. He licensed Hi Hotel to use the photos in advertising brochures and on its website. As usual, and needless to say, there was no written agreement to spell out the terms of use. Hi Hotel paid 2,500 euro for the photographs, following receipt of an invoice that stated, a little mysteriously, ‘include the rights — only for the hotel hi’.
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| Hi Hotel, Nice |
Five years later Spoering noticed in a bookshop in Cologne an illustrated book with the title
Innenarchitektur weltweit (‘Interior Architecture Worldwide’), published by Berlin publishing house Phaidon-Verlag. This book contained reproductions of nine of the photos he had taken for Hi Hotel. Considering that Hi Hotel had infringed his copyright by passing them on to a third party, Spoering sued Hi Hotel in Cologne, seeking injunctive relief and damages. Hi Hotel questioned the basis for the action. After all, Phaidon also had a place of business in Paris. Maybe it was to Phaidon's French office that Hi Hotel could have made the photos available, and that the French Phaidon then passed them on to its sister company in Berlin -- in which case the passing of the photos to a third party would have taken place in France, not Germany.
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| Book, also nice ... |
The trial court upheld Spoering’s claim; Hi Hotel then appealed unsuccessfully. However, on a further appeal on a point of law, the Bundesgerichtshof had its own doubts as to whether the international jurisdiction of the German courts might be established on the basis of Article 5(3) of
Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In its view, the international jurisdiction of the German courts under Article 5(3) must be examined on the basis of the assumption that the German Phaidon infringed copyright by distributing the photographs Germany and that Hi Hotel assisted it in so doing by handing them over to Phaidon in Paris. To be on the safe side, the Bundesgerichtshof decided to stay the proceedings and referred the following question to the Court for a preliminary ruling:
‘Is Article 5(3) of Regulation … 44/2001 to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) if the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?’
Last week, while this Kat was clearly looking in the other direction and missed it completely, the CJEU ruled thus:
'Article 5(3) ... must be interpreted as meaning that, where there are several supposed perpetrators of damage allegedly caused to rights of copyright protected in the Member State of the court seised, that provision does 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 is being sued did not act, but does allow the jurisdiction of that court to be established on the basis of the place where the alleged damage occurs, provided that the damage may occur within the jurisdiction of the court seised. If that is the case, the court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs'.
Er, does that mean "yes" or "no", ponders Merpel.
