Court of Appeal of Cologne, Decision of 14 September 2012, No. 6 U 73/12, "Cherry Stones"

The Court of Appeal of Cologne once again denied a copyright infringement by embedded content in a frame. Thus, the legal situation in Germany regarding the liability for third party content in frames is still somewhat unclear.

The defendant granted on his website access to the e-commerce platform Amazon. Access was provided in a frame embedded in the defendant's website without any change of the domain as displayed in the browser's address bar. Furthermore, the defendant indicated on his website that this service was powered by Amazon and that he received a provision from Amazon.

The applicant owns the copyright in a photography which could be viewed in the frame on the defendant's website. This photography was part of a photo collage created by a third party without the applicant's consent. The applicant claimed that the access of the third party content was a communication to the public and, therefore, infringed his copyright. The defendant argued that he merely simplified the access to the third party's website without adopting the third party content.

The District Court of Cologne issued a preliminary injunction for copyright infringement. The defendant's appeal before the Court of Appeal of Cologne was successful.

The decision of the Court of Appeal of Cologne is part of a series of judgments dealing with the communication of third party content to the public.

According to Article 19 (a) of the German Copyright Act which implements Article 3 of the Directive 2001/29/EC (InfoSoc) into German law, the author has the exclusive right to authorize or prohibit any communication to public of his works. Thus, the author of a protected work can demand a cease and desist declaration from anyone infringing his rights. However, neither the InfoSoc Directive nor the German Copyright Act answer the question whether a person who provides access to third party content communicates this – potentially infringing – third party content to the public.[1]

Regarding the liability for hyperlinks, the Federal Court of Justice decided in 2003 that linking to a third party's website is no communication to the public and, therefore, does not infringe copyright.

Regarding third party content embedded in a website the Federal Court of Justice has not given a decision yet. In a decision of 8 November 2011, the Court of Appeal of Düsseldorf affirmed the infringement of the right to communicate a work to the public by embedded content[2], however, in its decision of 16 March 2012 the court decided against the liability for third party content in frames.[3]

In the case at issue, the Court of Appeal in Cologne confirmed its view. The court held that access to infringing content by a frame was no communication to the public. It referred to the decision of the Federal Court of Justice in "Paperboy", according to which a communication to the public requires a certain control over the access to the protected work.

Similar to the hyperlinks, the operator of a website which includes frames simplifies the access to the third party content. However, not the defendant but the third party who puts the content online decides whether the content is communicated or not. Furthermore, the indication of the cooperation with Amazon shows that the defendant does not want to adopt the embedded content.

The decision contributes to the questions regarding the liability for embedded content. However, as the German courts differ in their decisions, the legal situation is left somewhat unclear. Thus, only a decision by the Federal Court of Justice may lead to a clarification.

For the moment, the implementation of third party content might lead to a recognizable risk of being sued by copyright owners. To minimize this risk, we recommend, for the time being, to embed third party content only with a clear indication that the operator of the website does not adopt the third party content.