Germany’s Federal Supreme Court is due to reach a decision today on the practice of framing. The judgment could have far-reaching consequences for online copyright law.
What is framing?
Framing is a process of presenting content, such as videos and photos, on a webpage which is taken from another. The content, which is linked to the original page, can be played or used directly on the page where it is embedded. An example would be posting YouTube videos on Facebook.
The case before the Federal Supreme Court (Bundesgerichtshof, BGH) concerns a YouTube video which had been embedded, without the copyright proprietor’s permission, on a website. The operator of the website, who had used framing to embed the video, received a warning letter for committing a copyright infringement.
German lawyer Christian Solmecke explains why the law in this area is so unclear:
“The legal world is still hotly debating whether it is illegal to embed copyright-protected content which is taken from another website. The key question is whether embedding copyright-protected content amounts to making a work publicly available. This is what is needed for a copyright infringement. The courts have conflicting views on the matter.
Some case law supports the view that embedding foreign content does not amount to making a work publically available. This is because the content is already available on the source website. An embedded video, for example, is therefore comparable to a link and the BGH considers links to be legal from a copyright point of view.
Other courts, including the Düsseldorf Regional Appeal Court, believe that embedding differs from linking as embedded videos do not provide a simple reference to another website, but can be viewed directly. This means that the videos are made available to the public which amounts to a copyright infringement.”
Risk of warning letters
“If the BGH does decide that embedding foreign content amounts to a breach of copyright, there is a risk that a wave of warning letters will be sent to social media users,” Christian Solmecke fears.
“Thousands of users post YouTube videos on Facebook every day. Facebook even automatically embeds the video through its embedded player when a link is posted. Users would potentially be committing a copyright infringement every time they post a video and this could lead to costly warning letters being received.”
“The decision could also have consequences for copyright owners who upload their own videos to YouTube. This is because it is currently unclear whether a licence for distribution is implied when a video is uploaded to YouTube.”
Will the BGH decide in favour of social media users or copyright proprietors?
“I think it could fall either way. That’s why we are all keen for the BGH to make its decision,” says Christian Solmecke.