“Framing” of publicly accessible website content admissible
13 Juli 2015
On 9 July 2015, the 1st Civil Senate of the German Federal Supreme Court (Bundesgerichtshof, BGH) ruled that the operator of a website does not commit a copyright infringement, if he via "framing" integrates copyright-protected content into his website which is accessible to all users of the Internet on another website and with the consent of the owner (docket no. I ZR 46/12 – Die Realität II). In the underlying case, the Defendants had integrated the film "The Reality" ("Die Realität"), which could be watched on the video platform YouTube and whose copyright owner was the Plaintiff, into their website in a way that by one click on an electronic link the film was retrieved from the YouTube server and was played in the frame that appeared on the website.
The Federal Supreme Court agreed with the court of appeal that the mere framing does not amount to "making available to the public" in terms of Sect. 19a German Copyright Act (Urhebergesetz) because it was only the decision of the owner of the other website to decide whether or not the work that was available on his website remained accessible to the public. However, the Federal Supreme Court took the view that in the underlying case it was unclear if the video clip in dispute had actually been uploaded to YouTube with the consent of the Plaintiff. This is why the Federal Supreme Court referred the case back to the court of appeal, where it will be dealt with again.
The entire judgment can be downloaded here (in German language).