The embedding of a site on a publicly accessible protected work in another site via a link using the framing technique, such as that at issue in the main proceedings, alone does not provide the public within the meaning of Article. 3 Abs. 1 Directive 2001/29 / EC of the European Parliament and of the Council of 22. More 2001 the harmonization of certain aspects of copyright and related rights in the information society is, as far as the work in question will be played either for a new audience or for a specific technical process, which differs from that of the original play.
ORDER OF THE COURT (Ninth Chamber)
21. October 2014(*)
"Preliminary ruling - Approximation of laws - Copyright and related rights - Directive 2001/29 / EC - Information society - the harmonization of certain aspects of copyright and related rights - Art. 3 Abs. 1 - Communication to the public - Definition - Internet Links, mediate access to protected works - using the framing technique "
In Case C-348/13
REFERENCE for a preliminary ruling under Article. 267 TFEU, from the Bundesgerichtshof (Germany) by decision of 16. More 2013, received at the Court on 25. June 2013, in the process
BestWater International GmbH
against
Michael Mebes,
Stefan Potsch
adopt
THE COURT (Ninth Chamber)
, composed of J. Malenovský (Reporter) acting for the President of the Ninth Chamber, of Judge M. Safjan and Judges A. Prechal,
Generalanwältin: It. Sharpston,
Chancellor: A. Calot Escobar,
due to the judgment given after hearing the Advocate General decision, gemäß Art. 99 Rules of Procedure of the Court to decide by reasoned decision,
following
Decision
1 The preliminary ruling concerns the interpretation of Article. 3 Abs. 1 Directive 2001/29 / EC of the European Parliament and of the Council of 22. More 2001 the harmonization of certain aspects of copyright and related rights in the information society (ABl. The 167, S. 10).
2 The reference was made in proceedings between the BestWater International GmbH (below: Best Water International) on the one hand and Mr and Mr Mebes Potsch other hand, because of the embedding clickable links to the Web sites operated by the latter, which the framing technique and use was conducted with the help of the Internet user to a film, states at the International BestWater the exclusive rights.
Legal framework
3 Art. 3 Abs. 1 the Directive 2001/29 certainly:
"Member States shall see, for authors with the exclusive right, wired or wireless communication to the public of their works, including such public disclosure of the works in the way, that they are members of the public from a place and at a time individually chosen, to authorize or prohibit. "
The main proceedings and the question referred
4 BestWater International is engaged in the manufacture and distribution of water filter systems. For advertising purposes, they had a roughly two-minute film about water pollution produced, on which it is entitled to the exclusive rights. To the facts in the main proceedings at the time this film was available on the video platform "YouTube". BestWater International argues, however, that he had been set there without their consent.
5 Mr. Mebes and Mr. Potsch are as independent sales representatives working for a BestWater with International competition related company. They each maintain their own website, on which they advertise the products sold by their customers. In the summer 2010 they allowed visitors to their websites, get the film produced by BestWater International through a network link by way of the so-called framings. If you click on this link, the film appeared, who came from the aforementioned video platform, in one appearing on the websites of the Lord and the Lord Mebes Potsch frame („Frame“), which gave the impression, that he will shown by these sites from.
6 Since BestWater International was the view, that Mr. Mebes and Mr. Potsch would have made the film available to the public without their permission, they sued to enjoin the dissemination of this film and asked them damages and reimbursement of Abmahnkosten.
7 After Mr. Mebes and Mr. Potsch had given a penalty clause statement regarding the distribution of the film, declared the parties to litigation regarding the omission desire for consistently done. The remaining requests of BestWater International contrast was held and the trial court sentenced the defendant in the main proceedings, at each BestWater International 1 000 Euro to pay damages and their respective Abmahnkosten in the amount of per 555,60 To reimburse EUR. The trial court imposed Mebes Mr and Mr Potsch also the costs of the case also with respect to the completed part of the action on.
8 The court of the Lord and the Lord Mebes Potsch Court of Appeal amended the decision at first instance and distributed the cost of the completed action request evenly between the parties. The other form of order sought by BestWater International contrast, had it from.
9 BestWater International appealed against that decision to the Federal Court.
10 During the audit, the auditors, the national court asked u. a. fixed, that in a case, in which a work is already a "communication to the public" within the meaning of Article. 3 Abs. 1 the Directive 2001/29 had been, a new play action using the same technological process could only be classified as 'public' within the meaning of that provision, when this action takes place in front of a new audience. Therefore, the adjustment made by Mr and Mr Mebes Potsch insert a link to the film produced by BestWater International have, at issue in the main proceedings, causes no playback for a new audience, because this film was already freely accessible on a video platform. However, the referring court points out, that served the links of the framing technique in question. This technique enables the operator of a website, to make a work their own, However, without this having to copy and thus fall within the scope of the rules on the right of reproduction. It directs the court considers from, whether it would not be justified, that at issue in the main proceedings link as 'public' within the meaning of Article. 3 Abs. 1 the Directive 2001/29 to see.
11 In those circumstances, the Bundesgerichtshof decided, stay the proceedings and refer the following question for a preliminary ruling from the Court:
The embedding of a publicly accessible website on an alien alien plant in your own website under certain circumstances, such as those in the main proceedings, the public within the meaning of Article. 3 Abs. 1 the Directive 2001/29 give, even if the other work is thus not play for a new audience and will not be playing for a specific technical process, which differs from that of the original play?
The question referred
12 Gemäß Art. 99 its Rules of Procedure, the Court may, if the answer can be derived clearly from the case on a question referred for a preliminary ruling, on the proposal of the Rapporteur and after hearing the Advocate General at any time to make the decision, to decide by reasoned decision.
13 This provision is applicable to the present reference.
14 According to the established case law of the Court, it is namely for classification as 'public' within the meaning of Article. 3 Abs. 1 the Directive 2001/29 is required, that a protected work using a technological process, which differs from the previously used, or, otherwise, is reproduced for a new audience, d. h. for an audience, had not thought of the owner of the copyright to the, as they allowed the original communication to the public (vgl. to that effect, SGAE, C‑306/05, EU:C:2006:764, Rn. 40 and 42, Organizations Beschluss Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, C‑136/09, EU:C:2010:151, Rn. 38, sowie Urteil ITV Broadcasting u. a., C‑607/11, EU:C:2013:147, Rn. 39).
15 What specifically concerns the case design, in which a third party on a site a work protected, which was already publicly released again on another website, adjusted by means of an Internet Links, the Court in Rn. 24 the judgment Svensson u. a. (C‑466/12, EU:C:2014:76) decided, that such an act of communication, since it uses the same technological process, which was already used for the communication of the work to another website, only 'public' within the meaning of Article. 3 Abs. 1 the Directive 2001/29 is classified, when the action takes place against a new audience.
16 This is not the case, especially because the work is freely available to all internet users already on another website with the permission of the copyright holder, can not act in question as 'public' within the meaning of Article. 3 Abs. 1 the Directive 2001/29 be classified (vgl. and to that effect Svensson. a., EU:C:2014:76, Rn. 25 to 28).
17 In the marginal. 29 and 30 the judgment Svensson u. a. (EU:C:2014:76) the Court clarified, that this finding is not affected by the fact in question, that the work in question appears by clicking the link Internet users in a manner, which gives the impression, that it is shown from the website, located on this link, although it comes in reality another website. This situation is substantially the characteristic of the framing technique, which is in dispute in the main proceedings and is, that a website of a website is divided into a plurality of frames and frame in one of these "embedded" means an Internet Links (Inline Linking) a another website entstamme Direction component is displayed, thus remains the users of this website hidden the original environment of this component.
18 Although this technique can, as the referring court finds, be used, make it accessible to a work to the public, without copying it to and thus fall within the scope of the rules on the right of reproduction. Notwithstanding the foregoing, but does not lead to their use, that the relevant work for a new audience is reproduced. Because the extent of this work on the site, referred to on the Internet Link, is freely accessible, is assumed, that the owner of the copyright, as they have allowed this reproduction, have thought of all Internet users as audience.
19 In view of the answer to the question referred, that the embedding of a site on a publicly accessible protected work in another site via a link using the framing technique, such as that at issue in the main proceedings, alone no public within the meaning of Article. 3 Abs. 1 the Directive 2001/29 represents, as far as the work in question will be played either for a new audience or for a specific technical process, which differs from that of the original play.
Costs
20 The parties to the main proceedings, a step in the action pending before the national court; the decision on costs is a matter for that court.
On those grounds, the Court (Ninth Chamber) hereby:
The embedding of a site on a publicly accessible protected work in another site via a link using the framing technique, such as that at issue in the main proceedings, alone does not provide the public within the meaning of Article. 3 Abs. 1 Directive 2001/29 / EC of the European Parliament and of the Council of 22. More 2001 the harmonization of certain aspects of copyright and related rights in the information society is, as far as the work in question will be played either for a new audience or for a specific technical process, which differs from that of the original play.