The First Civil Senate of the Federal Court of Justice (BGH), which is 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 he incorporates copyright-protected content that is publicly accessible on other websites into 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 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 the summer of 2010, they enabled visitors to their websites to access the video commissioned by the plaintiff by way of "framing". By clicking on an electronic link, the film was retrieved from the server of the video platform "YouTube" and played in a frame appearing on the defendants' websites ("frame").
The plaintiff is of the opinion that the defendants had thus made the video publicly accessible without authorisation within the meaning of Section 19a UrhG. 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 judgement of the Regional Court.
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. However, such a link could infringe an unnamed right of exploitation of communication to the public if Section 15(2) UrhG is interpreted in conformity with the Directive in the light 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 Federal Court of Justice therefore referred to the Court of Justice of the European Union the question - which, even taking into account the case-law of the Court of Justice, cannot be answered beyond doubt - of whether the embedding of a third-party work made publicly accessible on another party's internet site in one's own internet site constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC.
Decision of the BGH of 16 May 2013 - I ZR 46/12 - The reality
LG Munich I - Judgment of 2 February 2011 - 37 O 15777/10
OLG Munich - Judgment of 16 February 2012 - 6 U 1092/11
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Specialist lawyer for information technology law