Düsseldorf Court of Appeal, Decision of 8 October 2011, I-20 U 42/11

The Court of Appeal of Düsseldorf decided that the use of a photograph as "embedded content" on a website constitutes a "making available to the public" and, therefore, requires the authorization by the copyright owner. Using the embedded content without prior authorization infringed the author's copyright.

The plaintiff is the owner of two photos protected under German copyright law which he uploaded to his website. The defendant, the author of a blog, used the two photos in one of his blog entries as "embedded content" without prior asking the plaintiff for authorization.

"Embedded content" is content of one website displayed on another website. The original content is linked via an "inline link" to the new website. Visitors of the new website do not need to leave the website in order to view the content. Rather, the linked content is directly shown on the new website. The visitors do not necessarily see where the content originates from, except if they click on the displayed images.

In the case at issue, the court had to decide whether such inline linking constituted a "publicly making available" according to §19a of the German Copyright Act. If so, the person using the embedded content would need the approval from the owner of the embedded content.

It has already been decided that the "normal" linking of web content, i.e. where the new website only provides a link to the original website but does not embed the content itself, does not constitute a "making available" as this does not require the upload of the content and the users still need to visit the original website of the content to view it. It does not provide an additional access to the copyright protected material. "Normal" linking eases the access to copyright protected content but it does not provide access itself.

With regard to inline linking, the Court of Appeal of Düsseldorf, contrary to the Court of first instance, decided that this case was different and in fact constituted a "making publicly available". The claimant could reasonably expect that only visitors of his own website would have access to his photos. As the defendant made the photos directly visible at his own website he provided access to an additional public which the author had not planned for. The defendant therefore would have had to ask for authorization from the plaintiff.

As this was not the case, the court concluded that the use of the photos as embedded content constituted an infringement of the plaintiff's copyright and granted the claim.