[x-pubpol] German YouTube "framing" case

[Joly MacFie]

http://www.mondaq.com/x/246822/Licensing+Syndication/Two+Interesting+German+Decisions+On+Internet+Law

With its May 16, 2013 decision (docket no. I ZR 46/12), the Federal Court
of Justice (Bundesgerichtshof) in Karlsruhe referred a question regarding
the legitimacy of framing video content to the Court of Justice of the
European Union ("CJEU") in Luxembourg and asked for a preliminary ruling.

In general, "framing" is defined as the juxtaposition of two separate web
pages within the same web page that break the screen into multiple
non-overlapping windows. In the case at hand, YouTube's option to embed
video clips on other web sites is the focus of the controversy.

Facts and Procedural History. The plaintiff, BestWater International, a
company based in Brandenburg, Germany that produces and sells filtration
and purification systems for drinking water, had created a short
promotional video about water contamination. This video was anonymously
uploaded on YouTube without the plaintiff`s permission. Thereafter, a
competitor of the plaintiff embedded the video on its web site in order to
advertise its own water filtration system. As a consequence, in the summer
2010, visitors to the competitor's web sites were able to retrieve the
plaintiff's video from the competitor's web site. Consumers could follow a
link to the video in question, which was then played via the YouTube server
while remaining embedded in the competitor's web site in the course of the
so-called framing.

In the court proceedings, the plaintiff took the position that the
defendant made its video—a copyrightable work—publicly accessible in the
sense of Article 19a of the German Copyright Act without its permission
and, alleging infringement, demanded damages. In the first instance, the
District Court of Munich followed the legal opinion of the plaintiff and
ordered the defendant to pay damages in the amount of €1,000. The defendant
successfully challenged this decision, with the Court of Appeals of Munich
overruling the decision of the first instance in the appellate proceedings.
The plaintiff then appealed to the Federal Court of Justice, seeking
revocation of the decision of the Court of Appeals.

Decision of the Federal Court of Justice. The reasoning by the Federal
Court of Justice is not yet published; however, *the court states in a
press release that the Court of Appeals of Munich correctly assumed that
the mere linking of content available on a third-party web site by way of
framing is not considered "making publicly accessible" within the meaning
of Article 19a of the German Copyright Act *(Urheberrechtsgesetz). This is
supported by the argument that the owner of the third-party web site
autonomously decides whether the copyrightable work remains accessible to
the general public or not.

However, the court raises the question whether this type of framing may
violate Article 3(1) of the Directive 2001/29/EC of the European Parliament
and of the Council of May 22, 2001 on the harmonization of certain aspects
of copyright and related rights in the information society ("Copyright
Directive") and, as a result, also violates Article 15(2) of the German
Copyright Act. Article 15(2) of the German Copyright Act provides the
exploitation right of the author, and this right must in itself be
interpreted in light of Article 3(1) of the Copyright Directive. The
wording of Article 3(1) is as follows:

Right of communication to the public of works and right of making available
to the public other subject-matter:

1. Member States shall provide authors with the exclusive right to
authorise or prohibit any communication to the public of their works, by
wire or wireless means, including the making available to the public of
their works in such a way that members of the public may access them from a
place and at a time individually chosen by them.

Summary and Prospect. The Federal Court of Justice has concluded that
embedding copyrighted videos on other web sites in principle does not
violate German copyright law. However, the court indicated that such
practice may violate European copyright laws and therefore asked the CJEU
whether this type of framing may be considered as "making available to the
public" in the meaning of Article 3(1) of the Copyright Directive, which in
return would result in an unauthorized exploitation of the copyrighted work.


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