The European Court of Justice (ECJ) has stated that framing of content (such as embedding Youtube videos or other content on blogs and other websites via link) does not violate the copyright of the author of the respective content. In particular, such framing is not considered a “making available to the public” according to the European directive on copyright in the Information Society (2001/29/EC) and section 19a of the German Copyright Act (“UrhG”). However, it can be derived from the court ruling that this applies only if the reproduction is not meant for a new audience and does not use a different reproduction technique.
Youtube, Facebook, Twitter and many other webservices offer users the possibility to embed videos and other content and thereby show them directly on different pages than the one they were originally published on. This technique is called “framing” and is also often used by website operators in order to present certain content which is not their own to their users.
The German Federal Court of Justice (Bundesgerichtshof, “BGH”) has expressed doubts with regard to the question whether framing (in the case in question: the embedding of a Youtube video) is possible without violating the copyright of the owner of the respective content.
The BGH stated that such embedding of videos could not be considered as a “making available to the public”, because the owner of the website where the video was made available originally decides whether the content is visible or not. However, according to the BGH, framing may violate an unwritten right to publicly reproduce copyright protected content. Such unwritten right to exploit protected content has to be derived from section 15 (2) UrhG by way of interpretation in conformance with the directive on copyright in the Information Society. The violation of such unwritten right however requires (according to the BGH) that a new audience is addressed and a new technique is used in comparison to the original making available to the public by the author or a person authorized by him.
Because of these doubts, the BGH therefore had submitted the question to the ECJ.
The ruling of the ECJ
The ECJ has answered the BGH’s question as follows:
Framing or “Inline linking”, as the ECJ also calls the technique in question, does not violate an unwritten right to publicly reproduce content or in general the copyright of the owner of the embedded content, because it does not address a different audience and because it does not use a new technique compared to the original publication.
This does apply even if the linked content appears on a new website and looks as if it was originally presented on this website. The ECJ stated that framing may (under certain circumstances) indeed be considered as “making available to the public” (just as the BGH assumed). However, if the content in question was freely accessible on the website it was originally published on, it is not made available to a new audience when framed on different websites. Rather, the author must have had all internet users in mind when first publishing the content on the internet, including users which first see the content in question on the website where it is framed. Therefore, framing under these circumstances cannot be considered as a violation of an author’s right to exploit his content.
The ruling of the ECJ means legal security for many internet users. It has long been discussed whether framing (in opposite to mere linking) can be considered as “making available to the public” and therefore possibly violates third party copyrights. This discussion has finally come to an end.