Report on the IMKR Lecture “Linking, Framing & Co.: Perspectives on Internet Reform” by Prof. Leistner

Following welcoming remarks by Prof. Dr. Klass and Dean Prof. Wulf, Prof. Dr. Matthias Leistner, LL.M., Director of the Institute for Commercial and Economic Law at the Rheinische Friedrich-Wilhelms-Universität Bonn, opened the IMKR lecture series on April 20, 2016. In his presentation, Prof. Leistner outlined the need for reform in substantive copyright law. He focused on exclusive exploitation rights, particularly in relation to hyperlinks and video platforms, as well as liability, enforcement, and remuneration claims against platforms. The right of public communication, including the rights of reproduction and distribution, has been fully harmonized under EU law. Therefore, reform must essentially take place at the European level.

In the first section of the presentation, Prof. Leistner explained the various types of hyperlinks. In principle, according to European and German case law, simple links on the Internet (including deep links) do not constitute public communication within the meaning of German law. Difficulties arise, however, with so-called embedded links (inline links), such as when a YouTube video is embedded on one’s own website. This allows for the material to be used for purposes other than those intended. In principle, ECJ case law (ECJ, Order of Oct. 21, 2014 – C-348/13 and ECJ, Judgment of September 8, 2016 – C-160/15) held that an inline link, like a simple link, does not constitute a public communication. The Federal Court of Justice (BGH) limited this in its case law (judgment of July 9, 2015 – I ZR 46/12) to cases where the content is freely accessible from at least one source on the Internet with the consent of the rights holder in order for there to be no public communication. As a result of the case law of the European Court of Justice (ECJ) and the BGH, the unauthorized use of one’s own material could only be sanctioned through competition law provisions. This demonstrates that there is no harmonization in this area and that there is an immediate need for action at the EU level.

The second key issue concerns video platforms, where legal classification proves difficult. Anonymized users are increasingly acting as structured content providers themselves. As a result, such platforms are not held liable as perpetrators but only under the framework of interferer liability (Störerhaftung) and the privilege under § 10 of the Telemedia Act (TMG). There is a need here for a legal framework that must also cover the various categories of providers, including search engines. Further reform proposals by Prof. Leistner included blocking orders against access providers and warning notices (as a prerequisite) for the allocation of costs in the event of an initial warning letter regarding copyright infringements by private users. Ultimately, alternative solutions – such as general de-anonymization and criminal prosecution – should also be discussed at the European and German levels.