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.
