Following CJEU decision BestWater (C-348/13), the German Federal Supreme Court on 9 July 2015 (I ZR 46/12) ruled again on BestWater and decided that framing of copyrighted third party content does not constitute a copyright infringement in situations when the content originally was uploaded with consent of the right holder of the content.

Framing refers to the practice of providing a link to a third party`s website, and displaying and embedding the linked content in a frame on the website which contains the link.

The BestWater case relates to a dispute between BestWater International, a German company manufacturing water filtering systems and two self-employed commercial agents working for a competitor. BestWater considers that the two commercial agents had infringed BestWater’s rights by embedding on their website by means of framing a promotional video which was created on behalf of BestWaterBestWater’s video originally appeared on YouTube, however BestWater claims that that was without its consent and that it had no knowledge that its video was uploaded on YouTube.

On 21 October 2014 the CJEU (C-348/13) ruled that framing by itself, i.e. the embedding in another website of copyrighted content which is publicly available on a website using the framing technology does not constitute “communication to the public” within the meaning of Article 3(1) Infosoc-Directive if the relevant work is neither communicated to a new public nor is communicated using a specific technical means which is different from that of the original communication.

This case is of interest because the German Supreme Court in its decision on 9 July 2015 obviously interprets the CJEU decision in a way that framing only is permitted and does not constitute a copyright infringement if the framed content was authorised on the source, which requires that the framed content had been originally uploaded with the rights owner’s permission. As mentioned above, BestWater claimed that the video was uploaded on YouTube by unknown parties withoutBestWater’s consent. The German Supreme Court emphasized, referring to the pending CJEU case of GS Media BV/Sanoma Media Netherlands BV (C-160/15) referred by the Dutch Supreme Court, that if the source is not authorised, i.e. in the absence of such permission of the copyright owner to the first upload, framing the content can be considered as communication to the public in the meaning of Article 3(1) Infosoc-Directive with the consequence that his would constitute a copyright infringement.

The German Supreme Court considered staying the proceedings until a decision of the CJEU in the GS Media case (C-160-15). The subject matter of the GS Media case is whether it constitutes a communication to the public within the meaning of Article 3(1) Infosoc-Directive if the content has been made available to the public on another website without the consent of the right holder. The German Supreme Court however did not stay the proceedings, as a decision of the CJEU in the GS Media case is not expected before mid-2016. As the question submitted to the ECJ in the GS Media Case is only relevant for the BestWater proceeding if the video originally had been uploaded on YouTube without the consent of BestWater, the German court of appeal first has to decide on that factual issue. The German Supreme Court therefore referred the case back to the German court of appeal, which so far has not made any findings on BestWater’s claim for alleged lack of consent.

Recommendation: The CJEU in the GS Media case (C-160-15) will hopefully clarify these questions soon. Until the CJEU delivers its verdict, framing should only be used if the framed content was authorised on the source.