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 Framing a Copyright Violation in Germany

The Munich regional court (parties names are not released under German privacy law, decision of January 10, 2007, No. 21 O 20028/05) held that framing infringes a copyright holder's exclusive right to make his work publicly available according to 19 a of the German Copyright Act. The defendant had used a framing link to incorporate a photo of a Vimba bream, a fish with the more common name zanthe, in his own website without the permission of the right holder.  

Frames devide an Internet browser window into separate regions. With a framing link, the title of the web site as well as its URL are not replaced by the linked to site's, so that a user may not recognize that he is viewing another web page.

To construe the making available right, the court did nether take a purely server-oriented perspective based on what happens at the technological-level as users browse the web (the web site on which the content is stored and by which it is served directly to a user, not the web site that frames the content, is the web site that makes the content available) nor a purely visual perspective (the mere act of incorporating content into a web page). According to the court a work is made publicly available if technical measures cause its integration into the appearance of a web site even if the file is located on a foreign server, as long as users can't detect the true origin of the content. Following this reasoning, the operator of a web site would not impose himself to suit for direct infringement, if he discloses the identify of the actual server of the content.

The decision is available, in German, at





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