David Jahn May 2 2016 Embedding illegal content unlawful according to Federal Court of Justice Klinkert Rechtsanwälte PartGmbB | Intellectual Property - Germany David Jahn Intellectual Property BackgroundEmbedding illegal contentHistory and decisionCausa finita?On July 7 2015 the Federal Court of Justice decided on a question regarding the legitimacy of framing video content (I ZR 46/12 – Die Realität II). However, the ruling may not stand for long.Background When using the framing technique, a web page is generally divided into several non-overlapping windows (frames). The content from another web page is embedded via inline linking to one of these windows so that recipients are not forwarded to the websites where the content was originally uploaded. The embedding of content is a key feature of the Internet. Therefore, it is surprising that it has not yet been possible to provide definitive legal clarification on the question of whether embedding content that is published without author authorisation constitutes copyright infringement. In early 2016 the court dealt with the issue. However, with respect to the recently published (April 7 2016) opinion of the advocate general in GS Media (c-160/15) – pending before the European Court of Justice (ECJ) – the ruling can be assigned to the past.Embedding illegal contentThe question also came up in Case I ZR 46/12. In the disputed case, the claimant was the copyright holder of a promotional video called "Die Realität" ("The Reality") about water contamination. The video was uploaded onto YouTube (allegedly without the claimant's permission). The defendants embedded the video on their website using the framing technique. As a result, by clicking on the displayed link users could watch the video on the defendant's website when it was actually retrieving the video from the YouTube server. The claimant filed proceedings and contended that the video was made publicly available according to Article 19a of the Copyright Act (and Article 3(1) of EU Directive 2001/29/EC), alleged infringement and demanded damages.History and decisionThe Munich District Court (37 O 1577/10) followed the legal opinion of the claimant, while the Munich Court of Appeal (6 U 1092/11) overruled the first-instance decision. The claimant appealed to the Federal Court of Justice, which referred the case to the ECJ, questioning whether embedding content on a website that was made publicly available on a different website is a public communication in the sense of Article 3(I) of EU Directive 2001/29/EC (Die Realität, I ZR 46/12, May 16 2013).In BestWater (C-348/13) the ECJ held – in accordance with its former ruling in Svensson (C-466/12) – that in order to establish a public communication, the copyright-protected work must, if there are no changes in technical means, reach a new public (ie, a public that was not considered by the copyright holder when the initial communication was permitted). Therefore, according to the ECJ, there was no copyright infringement, since the original communication to the public already addressed all (potential) internet users and therefore the same public, albeit on a different website.The question regarding the result of linking to or embedding illegally uploaded content remained. The claimant stated that the video was uploaded on YouTube without its permission. However, the Federal Court of Justice did not expressly ask the ECJ a separate question about embedding illegal content. Therefore, in BestWater the ECJ generally repeated the statements made in Svensson, where the issue concerning illegal content was not decisive.Nevertheless, the Federal Court of Justice decided that in light of Svensson and BestWater, the linking to a website (via embedding) that publishes a video without authorisation from the copyright holder addresses a new public and must therefore be considered copyright infringement according to Article 3(I). It was argued that if the copyright holder did not know about the original publication in the first place, it would also be unable to envisage a public to which the communication is directed on the new website.Causa finita?It will soon be decided whether the Federal Court of Justice correctly interpreted the statements that the ECJ made in Svensson and BestWater. In GS Media the Dutch Supreme Court sought a preliminary ruling by the ECJ on this issue.FactsGS Media, the operator of the website 'GeenStijl', published advertisements and a (simple) hyperlink directing viewers to an Australian website where photos were made available without the consent of the copyright holder. According to the copyright holder, GS Media infringed copyright.The case is still pending. However, the advocate general acknowledged that:"hyperlinks placed on a website greatly facilitate the discovery of other websites, and protected works available on those sites, and as a result offer users of the first website faster and more direct access to those works. However, hyperlinks which lead, even directly, to protected works are not 'making them available' to the public when they are already freely accessible on another website, and only serve to facilitate their discovery. The actual act of 'making available' is the action of the person who effected the initial communication. Consequently, hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an 'act of communication' within the meaning of the Directive. In fact, the intervention of the owner of the site which places the hyperlink, in this case GS Media, is not indispensable to the photos in question being made available to internet users, including those who visit GeenStijl's website."The advocate general's opinion is not binding on the ECJ, but such opinions are often an indication of how the ECJ will decide. If the ECJ follows the advocate general, it will be bad news for copyright holders. However, from the point of view of an internet user, it will make life easier. The legal situation after Die Realität II remains uncertain, since it is unclear whether the original upload happened with or without the consent of the copyright holder. However, this uncertainty may soon belong to the past. This is also true for the Federal Court of Justice's statements in Die Realität II.For further information on this topic please contact David Jahn at Klinkert Rechtsanwälte by telephone (+49 69 972 65 600) or email ([email protected]). The Klinkert Rechtsanwälte website can be accessed at www.klinkert.pro.