On July 9, 2015, the I Civil Senate of the Federal Court of Justice, responsible, among other things, for copyright law, ruled that a website operator does not commit copyright infringement if they integrate copyrighted content, which is accessible to all internet users on another website with the consent of the rights holder, into their own website by way of “framing.”
The plaintiff, who manufactures and distributes water filter systems, commissioned a film approximately two minutes long titled “The Reality” for advertising purposes, which addresses water pollution. She is the owner of the exclusive copyright exploitation rights to this film. The film was – according to the plaintiff's submission, without her consent – available on the video platform “YouTube.”
The two defendants operate as independent commercial agents for a company competing with the plaintiff. Each maintains their own websites, on which they advertise the products they distribute. In the summer of 2010, they enabled visitors to their websites to access the video commissioned by the plaintiff by way of “framing.” When a link was clicked, the film was retrieved from the server of the video platform “YouTube” and played in a frame appearing on the defendants' websites.
The plaintiff is of the opinion that the defendants thereby unlawfully made the video publicly accessible. She therefore claimed damages from the defendants.
The Regional Court ordered the defendants, as requested, to pay damages of €1,000 each to the plaintiff. Upon the defendants' appeal, the Higher Regional Court dismissed the action.
With the appeal on points of law admitted by the Higher Regional Court, the plaintiff seeks the reinstatement of the Regional Court's judgment. The Federal Court of Justice overturned the appellate judgment and referred the case back to the Higher Regional Court.
The Higher Regional Court, according to the BGH, rightly assumed that the mere linking of a work made available on an external website to one's own website by way of “framing” does not constitute a public communication within the meaning of Section 19a of the German Copyright Act (UrhG), because only the owner of the external website decides whether the work made available on their website remains accessible to the public. Such a link also generally does not infringe an unnamed exploitation right of public communication, even with a directive-compliant interpretation of Section 15(2) UrhG, as 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. The Court of Justice of the European Union, in response to the preliminary ruling request submitted by the Federal Court of Justice in the present legal dispute, stated that there is no public communication if clickable links are provided on a website to works that are freely accessible to all internet users on another website with the permission of the copyright holders. This also applies if, when clicking on the provided link, the work appears in a manner that gives the impression that it appears on the page where this link is located, although it actually originates from another page.
However, according to the BGH, it can be inferred from the statements of the CJEU that in such cases, a public communication occurs if there is no permission from the copyright holder. Accordingly, the defendants would have infringed the copyright in the film if it had been uploaded to “YouTube” without the consent of the rights holder. The Higher Regional Court made no findings on this matter. The BGH therefore overturned the appellate judgment and referred the case back to the Higher Regional Court so that it can make the necessary findings.
The Federal Court of Justice considered suspending the proceedings until the Court of Justice's decision on the preliminary ruling request submitted by the Hoge Raad of the Netherlands on April 7, 2015, in Case C-160/15 – GS Media BV/Sanoma Media Netherlands BV et al. The Hoge Raad referred the question to the CJEU of whether a public communication is to be assumed if the work has been made accessible on the other website without the consent of the rights holder. Nevertheless, the BGH refrained from suspending the proceedings. A decision by the CJEU in the case referred to it by the Hoge Raad is not expected for at least another year. The question posed to the CJEU in that case is only relevant in the present proceedings if the film was uploaded to “YouTube” without the consent of the rights holder. It is therefore not appropriate to suspend the proceedings without clarifying whether the film was uploaded to “YouTube” without the consent of the rights holder.
BGH Judgment of July 9, 2015 – I ZR 46/12 – The Reality II
Lower Courts:
CJEU – Order of October 21, 2014 – C-348/13, GRUR 2014, 1196 = WRP 2014, 1441 – BestWater International/Mebes and Potsch
BGH – Order of May 16, 2013 – I ZR 46/12, GRUR 2013, 818 = WRP 2013, 1047 – The Reality I,
Higher Regional Court of Munich – Judgment of February 16, 2012 – 6 U 1092/11, ZUM-RD 2013, 398
Regional Court of Munich I – Judgment of February 2, 2011 – 37 O 15777/10
Source: Press Release of the Federal Court of Justice
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
