Whether links to copyrighted content is legal in the light of possible framing?

Advocate General of the European court M. SZPUNAR has issued his opinion in case C‑392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz.

The dispute concerns the following background:

Verwertungsgesellschaft Bild-Kunst (‘VG Bild-Kunst’) is a copyright collecting society for the visual arts in Germany. Stiftung Preußischer Kulturbesitz (‘SPK’) is a foundation under German law.

SPK is the operator of the Deutsche Digitale Bibliothek (DDB), a digital library devoted to culture and knowledge, which networks German cultural and scientific institutions.

The DDB website contains links to digitised content stored on the internet portals of participating institutions. As a ‘digital showcase’, the DDB itself stores only thumbnails, that is to say smaller versions of the original images. When a user clicks on a search result, he or she is redirected to the page for the object – on the DDB’s site – which contains an enlarged version of the image (440 x 330 pixels). When that image is clicked on or the ‘magnifying glass’ function is used, an enlarged version of the thumbnail, with a maximum resolution of 800 x 600 pixels, is displayed in a lightbox. Moreover, the ‘Display object on original site’ button contains a direct link to the website of the institution providing the object (either a simple link to its home page or a deep link to the page for the object). The DDB uses works with the authorisation of the holders of the copyright in those works.

VG Bild-Kunst makes the conclusion with SPK of a licence agreement for the use of its catalogue of works in the form of thumbnails conditional on the inclusion of a provision whereby the licensee undertakes, when using the protected works and subject matter covered by the agreement, to apply effective technological measures against the framing by third parties of the thumbnails of the protected works or subject matter displayed on the DDB website.

Taking the view that such a contractual provision was unreasonable from the point of view of copyright, SPK brought an action for declaratory relief before the Regional Court, Germany seeking a declaration that VG Bild-Kunst was required to grant the licence in question to SPK without making that licence conditional on the implementation of those technological measures. That action was initially dismissed by the Regional Court. On appeal by SPK, the judgment of the Regional Court was overturned by the Higher Regional Court, Germany. By its appeal on a point of law (Revision), VG Bild-Kunst seeks the dismissal of SPK’s action.

Federal Court of Justice, Germany points out, first, that, pursuant to the first sentence of Paragraph 34(1) of the VGG, collecting societies are required to grant to any person who so requests, on reasonable terms, a licence to use the rights entrusted to them for management. The referring court states, secondly, that, according to its case-law applicable in the present case, it is accepted that collecting societies may, in exceptional cases, derogate from their obligation and refuse to grant a licence, provided that that refusal does not constitute an abuse of monopoly power and that it is possible to rely, in opposition to the licence application, on overriding legitimate interests. In that regard, in order to determine whether there is an objectively justified exception, it is necessary to weigh up the interests of the persons concerned, taking into account the purpose of the law and the objective underlying that basic obligation of collecting societies.

The outcome of the appeal on a point of law depends on whether the embedding of a work – which is available on a website, such as that of the DDB, with the consent of the rightholder – in the website of a third party by way of framing constitutes communication to the public of that work within the meaning of Article 3(1) of Directive 2001/29/EC where it circumvents protection measures against framing taken by the rightholder or imposed by him or her on a licensee. If it does, the rights of the members of VG Bild-Kunst are affected and it could legitimately request that the obligation to implement technological measures against framing be included in the licence agreement with SPK.

Being uncertain as to the answer to be given to that question, in the light of the Court’s case-law on the use of hyperlinks on the internet, the Federal Court of Justice decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does the embedding of a work – which is available on a freely accessible website with the consent of the rightholder – in the website of a third party by way of framing constitute communication to the public of that work within the meaning of Article 3(1) of Directive 2001/29/EC where it occurs through circumvention of protection measures against framing taken or instigated by the rightholder?’

The Advocate General’s opinion:

(1) Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the embedding in a webpage of copyright-protected works freely available to the public with the authorisation of the copyright holder on other websites, in such a way that those works are automatically displayed on that page as soon as it is opened, without any further action on the part of the user, constitutes a communication to the public within the meaning of that provision.

(2)  That article must be interpreted as meaning that the embedding of a work – which has been made freely available to the public on a website with the consent of the rightholder – in the website of a third party by means of a clickable link using the framing technique does not constitute a communication to the public within the meaning of that provision, where that embedding circumvents protection measures against framing taken or imposed by the copyright holder.

(3)  Technological protection measures against the embedding in a webpage of copyright-protected works freely available to the public with the authorisation of the copyright holder on other websites, where those works are embedded in such a way that they are automatically displayed on that webpage as soon as it is opened, without any further action on the part of the user, constitute effective protection measures within the meaning of Article 6 of Directive 2001/29.

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