|Merpel sniffs the water for|
signs of pollution*
What happened in this case was that the plaintiff in the national proceedings, who made and sold water filtration system, created a promotional video ("The Reality") on the topic of water pollution and owned the copyright in the video. This video was also available on YouTube, without the applicant’s consent. The two defendants, 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 framing it: consumers could click on to a link that retrieved the video in question, which was then played from YouTube.
The plaintiff considers that the defendants made its video publicly available in the sense of Article 19a of the German Copyright Act and, alleging infringement, demanded damages. The trial court agreed and ordered the defendants to pay damages of €1,000), but this decision was reversed on appeal. The plaintiff then appealed to the BGH, seeking restoration of the trial court's judgment.
According to the BGH's press release, the BGH states that the appellate court had correctly assumed that the mere linking of content available on a third part website by way of framing is not a “making 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 BGH wondered 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 provides for an “unnamed exploitation right"), which must itself be interpreted and applied in the light of Article 3(1) of the Copyright Directive. The BGH therefore asks the CJEU whether this type of framing is a “making available to the public” in the sense of Article 3(1) of the InfoSoc Directive which states:
“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 authorise 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”.
* Photo by Magnus Manske