The German Tribunal of Justice (BGH) acknowledged that a link made available by a party on its own internet website to a film placed by another party on youtube does not infringe the copyright of the party who voluntarily has made the film available to an unlimited number of internet users.
A plaintiff in the case was a company producing water filters who placed a short film on youtube on water pollution. It filed a claim against two persons being independent sales representatives of its competitor. On their website, they placed a link to the film of the plaintiff in such a way that after a window with the film was clicked on it was downloaded from the youtube website and played back in a frame without entering the youtube website (the setting of multimedia – so called framing or embedding).
BGH ruled that such a way of sublinking somebody else’s content was not making the work available to the public within the meaning of § 19a of the German Act on copyright and related rights (UrhG). Here, consent of the party holding the copyright on the film is decisive to publish it on the youtube website for in this manner such party itself has decided to make the film available to the public.
The ruling is in conformity with the opinion of the European Court of Justice expressed in the judgment of 21st October 2014 in the case C-348/13 made in response to a petition for preliminary ruling filed by a German Court in this very case.
The ECJ cited its earlier judicature concerning the concept of making the work available to the public within the meaning of article 3 section 1 of the Directive 2001/29 whereby it occurs only when a copyright work is made available by technical means other than those originally used by an authorized entity and in this way reaches a new audience, that is to say the audience who has not been aimed at by the authors of copyright works when consenting to use their works as part of their original communication to the public.
Like in the judgment in the case Svensson (C-466/12) concerning “clickable links” to someone else’s press articles, the Court found that in case of “framing” one cannot speak about communication to the public due to the fact that the work has already been made available to readers with consent of the copyright holder on a webpage (here placed on the youtube website).
It should be noted that only claims under the copyright law were the subject matter of the proceedings. However, neither the European Court of Justice nor the German BGH examined admissibility of such actions in the light of regulations on combating unfair competition which might be considered as a basis for forbidding publication of materials of an immediate competitor.
- Judgment of the Federal Tribunal of Justice of 9th July 2015, file reference number I ZR 46/12