Framing is a convenient tool for journalists and readers alike. Putting a frame around a wide variety of content makes life easier for many jobs, passions and commercial interests. However, does framing provide any legal pitfalls?
Let’s first draw a picture of framing: What’s framing exactly? Other than setting an ordinary link to content of a third party’s website, in the case of framing the content is integrated via a link (“embedded” – e.g. as an iframe – or “inline link”) onto the very website which is called up. Via this link the third party’s content is displayed without any further click and without change of the URL in the browsers address bar in a so called frame of the same screen window whilst being stored on the third party’s server.
And legally? May a frame provider be held liable for a copright infringement? He may, but not necessarily: The Cologne Court of Appeal (Oberlandesgericht) recently held that a frame provider embedding content in the way described above does not commit a copyright infringement. The case dealt with the question if the frame provider which is providing somebody else’s content (in this case: photos of hotels and their surroundings) shown in a frame shall be liable for copyright infringements committed on the third party’s website linked to. The question was answered with a pretty clear “no”, the decision by the Regional Court was upheld. The court held that it is already unlikely that the relevant provision for making content publicly available, Section 19a of the German Copyright Act, is fulfilled. Section 19a of the German Copyright Act grants to authors the exclusive right to authorise or prohibit any making available to the public of their works in such a way that members of the public may access them from a place and a time individually chosen by them.The German Federal Supreme Court (Bundesgerichtshof) held that in order for Section 19a to apply content has to be controlled by the infringer and has to be part of the sphere to which he has access to. The Cologne Court of Appeal therefore reasoned in the case it had to decide that pure framing where the content is not stored on the server of the frame provider should not constitute an act by the operator of the website on which there is the embedded link to the third party’s content. However, the court did not ultimately decide this aspect.
The decisive aspect was the following: According to the court, the website of the defendant was designed in a way that it had to be clear to the website users that third party’s content was provided rather than own content for which the website operator would be held liable. Key for this reasoning seemed to have been that under each photo there was a notice reading “This service is provided to you by X. Powered by Y.” Like that a reasonable person intending to book a travel would understand that the situation may be compared to a travel agency handing over the desk a few catalogues by various travel operators back in the old days. The travel agency and the website operator thus only provide easy access to interesting third party material, no more, no less. In the case of framing we always deal with third party content. Whether this is unlawful is decided on another level, namely if this fact is recognizable to the website user or not. Delivering a stack of virtual travel catalogues with nice pictures on the top of someone’s lap, adding a notice about the service and putting a frame around is not only convenient but also generally allowed.
Since the website operator deleted the photos within two days of receiving a warning notice the court also rejected a liability under the aspect of a breach of duty of care (Störerhaftung). So implicitly, the court assumed that there is no obligation to check the embedded content in advance but only once there has been a notice of an infringement.
So far so good, a sound decision it seems. However, the facts of the case have made it rather easy for the court to decide the way it did. An earlier decision by the Düsseldorf Court of Appeal a copyright infringement was approved of and the court’s reasoning seems also alright in that case. Other decisions should therefore be watched closely and a decision by the Supreme Court would be welcome.
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