On 9 July 2015, the First Civil Senate of the Federal Court of Justice, which is responsible for copyright law among other things, ruled that the operator of a website does not commit copyright infringement if he embeds copyright-protected content, which is accessible to all internet users on another website with the consent of the rights holder, in his own website by way of "framing".
The plaintiff, which manufactures and distributes water filter systems, had an approximately two-minute film produced for advertising purposes entitled "The Reality", which deals with water pollution. It is the owner of the exclusive rights of use under copyright law to this film. According to the plaintiff, the film was available on the video platform "YouTube" without its consent.
The two defendants work as independent commercial agents for a company competing with the plaintiff. They each maintain their own websites on which they advertise the products they sell. In summer 2010, they enabled visitors to their websites to access the video commissioned by the plaintiff by way of "framing". By clicking on a link, the film was retrieved from the server of the video platform "YouTube" and played in a frame appearing on the defendants' web pages ("frame").
The plaintiff is of the opinion that the defendants had thus made the video publicly accessible without authorisation. She has therefore filed a claim for damages against the defendants.
The Regional Court ordered the defendants to pay the plaintiff damages in the amount of € 1,000 each. On appeal by the defendants, the court of appeal dismissed the action.
With the appeal admitted by the Court of Appeal, the plaintiff seeks the restoration of the Regional Court's judgement. The Federal Supreme Court (BGH) set aside the appeal judgement and referred the case back to the Court of Appeal.
According to the Federal Court of Justice, the Court of Appeal was right to assume that the mere linking of a work made available on a third-party website to one's own website by means of "framing" does not constitute making it available to the public within the meaning of Section 19a UrhG, because the owner of the third-party website alone decides whether the work made available on his website remains accessible to the public. Such a link does not infringe an unnamed right of exploitation of communication to the public, even in the case of an interpretation of Section 15 (2) UrhG in conformity with the Directive, which is required in view of Article 3 (1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. In response to the reference for a preliminary ruling from the Federal Court of Justice (Bundesgerichtshof) in the present case, the Court of Justice of the European Union stated that there was no communication to the public if clickable links to works were provided on an Internet page which were freely accessible to all Internet users on another Internet page with the permission of the copyright holders. This also applied if, when the link provided was clicked, the work appeared in a way that gave the impression that it appeared on the page on which the link was located, although it actually came from another page.
However, according to the BGH, it can be inferred from the ECJ's statements that in such cases there is a communication to the public if there is no permission from the copyright holder. According to this, the defendants would have infringed the copyright of the film if it was posted on "YouTube" without the consent of the copyright holder. The Court of Appeal did not make any findings on this. The Federal Court of Justice therefore set aside the appeal judgment and referred the case back to the Court of Appeal so that it could make the necessary findings.
The Bundesgerichtshof considered staying the proceedings pending the Court's decision in the reference for a preliminary ruling in Case C-160/15 - GS Media BV v Sanoma Media Netherlands BV and Others submitted by the Hoge Raad of the Netherlands on 7 April 2015. The Hoge Raad has referred the question to the ECJ whether a communication to the public is to be assumed if the work has been made accessible on the other internet site without the consent of the right holder. The BGH nevertheless refrained from staying the proceedings. A decision by the ECJ in the proceedings brought before it by the Hoge Raad is to be expected in one year at the earliest. The question posed to the ECJ in those proceedings is only relevant in the present proceedings if the film was posted on "YouTube" without the right holder's consent. It is therefore not appropriate to stay the proceedings without clarifying the question of whether the film was posted on "YouTube" without the right holder's consent.
BGH -Judgement of 9 July 2015 - I ZR 46/12 - Die Realität II
ECJ - Decision of 21 October 2014 - C-348/13, GRUR 2014, 1196 = WRP 2014, 1441 - BestWater International/Mebes and Potsch
BGH - Decision of 16 May 2013 - I ZR 46/12, GRUR 2013, 818 = WRP 2013, 1047 - Die Realität I,
OLG Munich - Judgment of 16 February 2012 - 6 U 1092/11, ZUM-RD 2013, 398
LG Munich I - Judgment of 2 February 2011 - 37 O 15777/10
Source: Press release of the BGH