Press release of the Federal Court No.. 090/2013 from 16.05.2013

Shall submit to the Federal Court of Justice of the European Union to issue rights
Admissibility of “Framing” ago

The u.a. I responsible for copyright. Civil Senate of the Bundesgerichtshof has referred the matter to the Court of Justice of the European Union, whether the operator of a website penalized for an infringement of copyright, if he copyrighted content, which are publicly available on other websites, by means of “Framing” integrates into its own website.

The applicant, manufactures and sells water filtration systems, made for advertising purposes a about two minutes long film entitled “The reality” manufacture, which deals with water pollution. It is the proprietor of the exclusive utilization rights to this film. The film was – according to the applicant, without their consent – on the video platform “YouTube” available.

The two defendants are acting as independent sales representative for the applicant in competition related company. They each have their own web pages, where they advertise the products they sell. In the summer 2010 they allowed the visitors to their websites, that given by the applicant in order by way of video “Framing” retrieve. By clicking on an electronic reference the film from the video server platform “YouTube” and accessed in one appearing on the websites of the defendant under (“Frame”) played.

The applicant considers, the defendants made the video so unjustified within the meaning of § 19a of the German Copyright Act public. It has therefore taken the defendant to pay damages claim.

The district court, the defendants request according to the payment of damages in the amount of each 1.000 € sentenced to the applicant. On appeal by the defendant, the Court of Appeal dismissed the action. With the revision approved by the court, the applicant seeks the restoration of the country court judgment.

The Court of Appeal has indeed – as the Federal – rightly assumed, that the mere linking of content provided on a foreign website work with your own website by way of “Framing” in principle, is not a publicly accessible within the meaning of § 19a of the German Copyright Act, because only the holder of the foreign website decides, whether held ready on his website work remains accessible to the public. Such a link could but with a view of the nature. 3 Abs. 1 Directive 2001/29/EC on the harmonization offered certain aspects of copyright and related rights in the information society consistent interpretation of § 15 Abs. 2 Copyright Act violate an unnamed right of use to the public. The Federal Court therefore asked the Court of the European Union – also taking into account the case law of the Court does not doubt to answer – Submitted question, whether the legislation at issue here embedding a made publicly available on an external website someone else's work in your own website to the public within the meaning of Article. 3 Abs. 1 Directive 2001/29/EC of the present.

Decision of 16. More 2013 – I ZR 46/12 – The reality

LG München I – Judgment of 2. February 2011 – 37 The 15777/10

OLG – Judgment of 16. February 2012 – 6 You 1092/11

Karlsruhe, the 16. More 2013

§ 15 Copyright Act

…

(2) The author also has the exclusive right, reproduce his work publicly in non-physical form (Right of public). The right of public includes in particular

1. …

2. the right of public access (§ 19a),

…

§ 19a UrhG

The right of public access is the right, the work wired or wirelessly to the public in a manner accessible to, that it is accessible to the public at times and places of their choice.

Article 3 of Directive 2001/29/EC

(1) The Member States shall provide, that the authors with the exclusive right, the wired or wireless public of their works, including the making public of their works in such a way, that they are accessible to the public at times and places of their choice, to authorize or prohibit.

Press office of the Federal