The First Civil Senate of the Federal Court of Justice (BGH), responsible inter alia for copyright law, has referred the question to the Court of Justice of the European Union as to whether the operator of a website commits a copyright infringement if it embeds copyrighted content, publicly accessible on other websites, into its own website by means 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 holds the exclusive exploitation rights to this film. The film was – according to the plaintiff, without her consent – available on the video platform 'YouTube'.
The two defendants operate as independent commercial agents for a company competing with the plaintiff. They each maintain their own websites where 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 via 'framing'. Upon clicking an electronic link, the film was retrieved from the server of the 'YouTube' video platform and played within a frame appearing on the defendants' websites.
The plaintiff asserts that the defendants thereby unlawfully made the video publicly accessible within the meaning of § 19a German Copyright Act (UrhG). She has therefore sued the defendants for damages.
The Regional Court ordered the defendants, as requested, to pay damages of €1,000 each to the plaintiff. Upon the defendants' appeal, the appellate court dismissed the action. With the appeal on points of law permitted by the appellate court, the plaintiff seeks the reinstatement of the Regional Court's judgment.
The appellate court – according to the Federal Court of Justice – rightly assumed that the mere linking of a work made available on a third-party website to one's own website by means of 'framing' generally does not constitute making it publicly accessible within the meaning of § 19a German Copyright Act, because only the owner of the third-party website decides whether the work made available on their website remains publicly accessible. However, such a link could, in light of a directive-compliant interpretation of § 15 para. 2 German Copyright Act, required with regard to Art. 3 para. 1 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, infringe an unnamed exploitation right of public communication. The Federal Court of Justice has therefore referred the question to the Court of Justice of the European Union – a question that cannot be answered unequivocally even considering the Court's jurisprudence – whether the embedding of a third-party work, publicly accessible on a third-party website, into one's own website, as is at issue here, constitutes a public communication within the meaning of Art. 3 para. 1 of Directive 2001/29/EC.
Federal Court of Justice Decision of May 16, 2013 – I ZR 46/12 – The Reality
Lower Courts:
Regional Court of Munich I – Judgment of February 2, 2011 – 37 O 15777/10
Munich Higher Regional Court – Judgment of February 16, 2012 – 6 U 1092/11
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2013
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
