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The First Civil Senate of the German Federal Court (Bundesgerichtshof)  referred a question regarding the framing of video content to the Court of Justice of the European Union, asking the ECJ to answer the question of whether the operator of a website who integrates into such website copyright-protected third party video content that is publicly available via another website (in the case at hand the operator framed a video that was available on YouTube) infringes copyright of that content pursuant to article 3(1) of the InfoSoc Directive.

The two defendants, which were independent sales representatives of a competitor, each ran websites on which they advertised their products. In summer 2010, they let visitors to their websites retrieve the plaintiff’s video by allowing them to click on to a link that retrieved the video in question, which was present on YouTube. 

The plaintiff claimed that the defendants had infringed its copyright by making the aforementioned video publicly available under Article 19a of the German Copyright Act  and claimed damages. The trial court agreed and ordered the defendants to pay damages of €1,000, but this decision was overturned in the second instance proceedings.

The plaintiff then appealed to the Bundesgerichtshof, seeking the reaffirmation of the trial court’s judgment. 

The Bundesgerichtshof held that the appellate court had correctly assumed that the mere linking of content available on a third part website by way of framing does not amount to making copyright material publicly accessible within the meaning of Article 19a of the German Copyright Act, since it is the owner the third party website who decides whether the content remains accessible to the public.

However, the Bundesgerichtshof posed the question of whether this type of framing could fall under Article 3(1) of the InfoSoc Directive and therefore also under Article 15(2) of the German Copyright Act (which protects exploitation rights), which must itself be interpreted and applied in the light of Article 3(1) of the Copyright Directive.

The Bundesgerichtshof asked the ECJ, therefore, whether this type of framing amounted to making it available to the public in the sense of Article 3(1) of the InfoSoc Directive which states that:

Right of communication to the public of works and right of making available to the public other subject-matter: 

1. Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

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