01
Apr 2016

The framing of external web content is not typically regarded as an act of use subject to approval.

The embedding of a work that is freely accessible to all internet users with the consent of the copyright holder in one’s own web page by way of so-called "framing" generally does not constitute any public reproduction in the sense of Section 15 Para. 2 and 3 of the Copyright Act (UrhG). This reflects the ruling of the Federal Court of Justice (BGH) under 09.07.2015 (I ZR 46/12 – Die Realität II).

Simply linking to works supplied on an external web page on one’s own website by way of "framing" does not constitute rendering content publicly accessible, since the owner of the external web page alone decides whether the works supplied on its web page should remain accessible to the public. The Federal Court of Justice thereby essentially falls in line with the most recent case law of the European Court of Justice and basically clears the way for the "framing" of external web content on posters' own websites. However, the Federal Court of Justice (BGH) stresses that such framing "without approval" is only permitted if those works supplied on the framed web page were made freely accessible to all internet users with the permission of the copyright holders. If this is not the case, and content which is in violation of copyright law in its own right is framed, then the framing itself is also in violation of copyright law. Those who opt for framing cannot plead in this respect that they "believed" the framed content to have been made publicly accessible legally because "acquisition in good faith" of neighbouring rights is excluded in this respect in the legal practice of today. When it comes to framing, there remains a certain residual risk and it is advisable to obtain the consent of the copyright holder when it comes to this type of distribution.

The Federal Court of Justice finds it possible that a copyright holder that has permitted their works to be made freely accessible to all internet users on a web page and thus publicly reproduced, may restrict its consent to this public reproduction by means of providing a notice to that effect. It states:

"The fact that, if the right holder did not restrict its consent, then the right to public reproduction of a work online would effectively be exhausted as soon as the works were made freely accessible to all internet users on a web page with the consent of the right holder, does however speak in support of awarding the right holder the power to do so. […] With this in mind the rights holder should be permitted to limit consent, since only in this way can the latter control the commercial exploitation of its works and ensure an appropriate share in the commercial exploitation of its works."

A copyright notice to this effect is therefore strongly advised for copyright holders that render web content publicly accessible online.

Dr. Robert Kazemi

Go back