To what extent linking and framing of copyrighted works is legal in the EU – a new EU Court decision

The European court has ruled in case C‑392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz. This case concerns the question to what extend linking and framing of copyrighted content can be illegal on the territory of the EU.

The case has the following background:

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. However, as a ‘digital showcase’, the DDB itself stores only thumbnails, that is to say smaller versions of the original images of the subject matter. When the user clicks on one of those thumbnails, he or she is redirected to the page concerning the particular subject matter on the DDB website, which contains an enlarged version of the thumbnail concerned, with a resolution of 440 by 330 pixels. When that enlarged thumbnail is clicked on, or the ‘magnifying glass’ function is used, a further enlarged version of the thumbnail, with a maximum resolution of 800 by 600 pixels, is overlaid by means of a ‘lightbox’. Further, the ‘Display object on original site’ button contains a direct link to the website of the institution providing the subject matter, either to its home page or to the page relating to that subject matter.

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

SPK considers that such a term in the agreement is not reasonable in the light of the legislation relating to copyright, and brought an action before the Regional Court of Berlin, Germany seeking a declaration that VG Bild‑Kunst is required to grant SPK that licence without any condition requiring SKK to implement such technological measures.

That action was dismissed by the Regional Court of Berlin. An appeal having been brought by SPK, the judgment of the Landgericht Berlin was set aside by the Higher Regional Court of Berlin, Germany. By its appeal on a point of law, VG Bild-Kunst seeks the dismissal of SPK’s action.

The Federal Court of Justice, Germany points out, first, that, pursuant to the first sentence of Paragraph 34(1) of the VGG, which transposes Article 16 of Directive 2014/26, collecting societies are obliged to grant to any person who so requests, on reasonable terms, a licence to use the rights whose management is entrusted to them.

Second, in accordance with its case-law established in the period during which the national legislation repealed by the VGG was applicable, case-law which, in the opinion of the referring court, continues to be of some relevance, it was accepted that collecting societies could, exceptionally, depart from that obligation and refuse to grant a licence for the use of the rights management of which was entrusted to them, provided that that refusal did not constitute an abuse of monopoly power and that the licence application was objectionable by reference to overriding legitimate interests. In that regard, in order to determine whether there is an objectively justified exception, it was necessary to weigh up the interests of the parties concerned, taking into account the purpose of the legislation and the objective underlying the obligation that applies, in principle, to collecting societies.

The outcome of the appeal on a point of law depends on the issue whether, contrary to what was held by the appeal court, the embedding of a work – which is available on a website, in this instance that of the DDB, with the consent of the right holder – in the website of a third party by means of framing constitutes a communication to the public of that work within the meaning of Article 3(1) of Directive 2001/29 where it circumvents protection measures against framing adopted by the right holder or imposed by him or her on a licensee. If that were the case, the rights of the members of VG Bild-Kunst would be liable to be affected and VG Bild-Kunst could properly subject the grant of a licence to SPK to the condition that SPK undertake, in the licence agreement, to implement such protection measures.

The referring court considers that, when thumbnails are embedded by framing in a third-party website so as to circumvent the technological protection measures adopted or imposed by the right holder, such embedding constitutes a communication to a new public. If that were not the case, the right of communication of a work to the public on the internet would, contrary to Article 3(3) of Directive 2001/29, be de facto exhausted as soon as that work was made freely accessible to all internet users on a website with the authorisation of the right holder, and that right holder would be unable to retain control of the economic exploitation of his or her work and to ensure adequate involvement in its use for economic purposes.

Federal Court of Justice is however uncertain as to the response to that question, having regard to the case-law of the Court in relation to the practice of framing (order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315) and to the freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in the digital context (judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 45), case-law which indicates that hyperlinks contribute to the smooth functioning of the internet and to the exchange of opinions and information, and accordingly it 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 right holder – 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 where it circumvents protection measures against framing adopted or imposed by the right holder?’

The Court’s decision:

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, by means of the technique of framing, in a third party website page, of works that are protected by copyright and that are freely accessible to the public with the authorisation of the copyright holder on another website, where that embedding circumvents measures adopted or imposed by that copyright holder to provide protection from framing, constitutes a communication to the public within the meaning of that provision.