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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 http://www.linksandlaw.de/urteil161-frames-zugaenglichmachung.htm

 

 

 

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