International prosecution of copyright infringements is generally complex, but certainly possible. In a June 2025 decision, the Supreme Court addressed the question of whether copyright infringement exists under Austrian law if a photograph is published without a license to use the work on an exclusively Dutch-language website with a Dutch top-level domain that is also accessible in Austria. Specifically, the case concerned the use of a professional photograph with a recognizably Austrian motif by a Dutch website operator. The lower courts had denied an economically relevant domestic connection and dismissed the plaintiff, an Austrian interest group,'s request for an injunction and payment. The Supreme Court partially granted the plaintiff's appeal and clarified that, unlike in trademark law, a "commercial effect" in Austria is not required for copyright infringements on the internet to claim protection under Austrian Copyright Law.
The plaintiff was an Austrian professional association that, among other things, manages photographers' related rights. In this capacity, it asserted claims because a Dutch sole proprietor had published a photograph on its website without the consent of the photographer (the photographer represented by the plaintiff). The photograph depicted LED lighting in a bar in Vienna and was part of the defendant's website. The defendant operated its business in the Netherlands, addressed its services exclusively to Dutch-speaking users, and did not conduct any business activities in Austria. However, the defendant's website was also accessible in Austria.
The plaintiff sought, on the one hand, an injunction against further use of the photograph for Austrian territory, and, on the other, payment of reasonable compensation in the amount of EUR 1,567.50 (including the so-called "duplum" under Section 87 (3) of the Copyright Act). He argued that for the application of Austrian copyright law, no market connection in Austria was required, but that the technical accessibility of the website within the country was sufficient. The lower courts took a different view, denying a sufficient domestic connection to establish copyright infringement in Austria, and therefore dismissed the lawsuit.
The plaintiff therefore appealed to the Supreme Court. The Supreme Court clarified that the territoriality principle in copyright law means that every act of use relevant to copyright law must be assessed under the law of the state in which protection is claimed. For an injunction under Section 18a of the Copyright Act – i.e., the right to make the work available to the public – the Supreme Court held that it is not necessary for the act to be directed at the Austrian market. It is sufficient if the work is accessible in Austria and, in addition, has a material connection to the country.
Contrary to the opinion of the lower courts, the so-called "commercial effect" required under trademark law is not required under copyright law. Unlike trademarks, copyright law does not require commercial transactions, but also protects the (purely) intellectual interests of the author. This involves not only commercial exploitation, but also control over the work and recognition of authorship.
In the present case, this domestic connection was certainly present: The photograph depicted a Viennese location, was embedded in the Austrian sphere of activity of a professional photographer, and was accessible without restrictions in Austria. The Supreme Court found that the website's design—in particular, the language and domain extension—played no decisive role in the violation of Section 18a of the Copyright Act, since the photograph was visible to Austrian users regardless of this without any technical or linguistic barriers. The mere fact that the defendant did not conduct business in Austria cannot exclude domestic copyright protection.
However, with regard to the payment claim, relevant findings were still missing, particularly regarding the question of how much reasonable compensation should be set for the use of an image that is merely available for download but not specifically marketed domestically. The question of whether the defendant was at fault (relevant to the duplicity) was also open. Therefore, the case was remanded to the court of first instance. The plaintiff's appeal was therefore successful. The Supreme Court reversed the previous rulings by granting the injunction and issuing a corresponding ban for the Austrian federal territory. The photograph was explicitly mentioned in the ruling. With regard to the payment claim, the Supreme Court overturned the judgments of the lower courts and remanded the case to the court of first instance for additional factual findings.
The decision has significant significance for copyright practice in the digital single market. The Supreme Court clarifies that trademark law criteria such as market relevance, language, or domain structure do not apply to violations of the right to make available under Section 18a of the Copyright Act. The only relevant criteria are whether the work is technically accessible in Austria and whether the rights holder or motif has a factual connection to Austria. The decision therefore significantly strengthens the position of authors and their collecting societies in cases of cross-border infringements on the internet.
Website operators should be aware of the copyright risks associated with using third-party images without a legally compliant license, as such legal proceedings abroad can be costly, time-consuming, and time-consuming. The decision underscores the need for careful rights clearance when illustrating online content, even if the website is not actively targeted at the Austrian market (or, conversely, at foreign markets). For photographers and exploitation organizations, the decision opens up expanded opportunities for domestic enforcement.
Supreme Court 24.06.2025, 4 Ob 132/24a
22.07.2025