The German Higher Regional Court of Cologne decided that someone who provided a link to a third party´s webpage, displaying the external content in a frame, could only be held liable for copyright infringements on the other party´s website under certain circumstances (that were not present in this case, see decision of 14 September 2012, file number: 6 U 73/12).
The defendant took part in a partner programme with Amazon and provided access to the Amazon webpage over his website. Via a link, the content of Amazon was embedded into his webpage, appearing in a so-called ‘frame’. Visitors could thus place orders with Amazon without leaving the defendant’s website.
According to the plaintiff’s allegations, copyright infringing material had been used on Amazon (a photo that he took and that was published without his consent, showing a pile of cherry stones).
Due to the framing technique, the infringing content could also be accessed over the defendant´s website. Though the plaintiff requested the defendant not to make the collage available to the public any longer, the defendant did not comply.
The decision: No liability
The Court found that the defendant did not commit any copyright infringement under Art. 19a of the German Copyright Act (liability for making works available to the public). He was not liable under any of the three categories of liability that exist under German law.
- First, the defendant was no perpetrator of a copyright violation because technically he did not make the content available to the public, but just provided a link to content made available by Amazon.
- Second, the defendant was no accessory of a copyright violation. Otherwise, he had to know about the infringement and intentionally supported it. The defendant did not have any intent regarding the infringement.
- The Court did not have to decide – for formal reasons - whether the defendant could have been held liable as a so-called “Störer” (translated directly as “disturber” or “interferer”). This “liability as a disturber” is a third category of liability under German law, which is fulfilled when someone contributed to a third party’s violation, without any intent regarding the actual infringement. According to German case-law someone who contributed to a third party’s IP right infringement could be held liable for future infringements of the same kind, if he failed to comply with reasonable precaution measures or monitoring duties, after he has been notified about a specific, retrievable infringement. In this event rights owner may raise cease and desist claims and claims for information (but, for the time being, no damage claims.
Though the Court did not have to decide this point, it nevertheless stated its opinion when someone could be held liable as a “disturber” in a case like this. The Court made clear that there was no duty of the defendant to monitor all linked pages. Furthermore, there was also no duty to completely delete the link after he had been notified of the possible infringement. However, it could be required from the defendant, as a member of the Amazon partner programme, to let Amazon know of the possible infringing material, and thus enable Amazon to further investigate and/ or react to the allegations. Thus, the Court was of the opinion that someone like the defendant could be held liable in cases like these, not for making content available as such, but for not forwarding the information about a possible infringement.
ECJ on liability for linking
Further clarification on liability for linking can be expected from the ECJ in its forthcoming preliminary ruling in Case C-466/12. Following questions posed by a swedish Court, the ECJ will have to answer if supplying a link to a copyright protected work constitutes a ´communication to the public` under Article 3(1) of Directive 2001/29/EC.