On 9 July 2015, the German Federal Supreme Court ruled, once again, on the case of Bestwater. You may already know this case as both the German Federal Supreme Court and the CJEU already released decisions on it before.

The case concerns the claim of Bestwater, a German company manufacturing and distributing water purification systems, that its rights were infringed by an unauthorised use of a promotional video. The video was created on behalf of the plaintiff who holds the exclusive exploitation rights. The video was uploaded to YouTube, the plaintiff claims, without its consent when two self-employed commercial agents implemented the video on their website via “Framing”.

“Framing” refers to the practice of linking to content in a way that does not use the usual hyperlinks consisting of words, but where the linked content is actually already visible on the website which contains the link. The linked content is therefore “framed” by original content of the website.

The proceedings before the Federal Supreme Court in this case were suspended for a while because the Court submitted to the CJEU the question whether “Framing” constitutes “communication to the public” within the meaning of Article 3(1) of Directive 2001/29/EC.

On 21 October 2014 (Case C-348/13), the CJEU decided that “Framing” should not be treated differently than including other hyperlinks on a website. Heavily relying on the arguments in its “Svensson” decision (case of 13 February 2014, C-466/12) the court took the position that the content was already made available to the public when it was uploaded on YouTube. Thus, the defendants only offered access to an already public video and did not communicate the content to the public again.

The peculiarity of the case is, however, that the plaintiff Bestwater claimed that the video was uploaded to YouTube without its consent. The German Federal Supreme Court now interprets the CJEU’s decision in such a way that “Framing” is only permitted with regard to content that was primarily communicated to the public with the right owner’s permission. In the absence of such consent to the first upload “Framing” the content would therefore be again considered communication to public under Article 3(1) Infosoc-Directive and would constitute an infringement.

Whether the lack of consent of the right proprietor effects the legal evaluation of “Framing” was not explicitly decided by the CJEU. The question referred to the CJEU by the German Federal Supreme Court did not specify this issue. However, it is subject-matter of a pending question submitted by the Dutch Supreme Court (case C-160/15 – GS Media BV/Sanoma Media Netherlands BV).

The German Federal Supreme Court considered suspending the proceeding until the CJEU decides on the question submitted by the Dutch Supreme Court but eventually saw no need to do so. Instead they referred the case back to the German court of appeal that had not made any findings on the plaintiff’s claim for alleged lack of consent. As the legal question whether “framing” of content that was uploaded without the consent of the rights holders is only relevant for this case, if the promotional video was uploaded without such content, the court of appeal now has to first decide on the facts of the case. It is to be expected that the Federal Supreme Court will get another shot at deciding on this case if the court of appeal decides that the permission to upload the video on YouTube was missing.

While the CJEU has not yet explicitly taken a position on the legality of “Framing” of content that was uploaded without the consent of the right holder, the German Federal Supreme Court’s decision is a strong indication that, in the German judges’ view, “Framing” might very well constitute a copyright infringement in such a situation.

Clarity will hopefully be provided by the CJEU soon. Until then, “Framing” is only admissible for sure where it refers to authorized content and should therefore only be used with caution for the time being.