Where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a third party, by means of the technique of framing, constitutes an act of ‘making available that work to a new public’.
The Court of Justice of the European Union has ruled in Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz. The Advocate General previously said in his opinion that inline linking requires the consent of rights-holders, but clickable links using framing do not, even if anti-copying measures are circumvented.
The Court said that where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a third party by framing, constitutes making available that work to a new public. Consequently, that communication to the public must be authorised by the copyright holder.
The website of a German digital library contained links to digitised content stored on the internet portals of participating institutions. The library itself stocks only thumbnails (smaller versions of the original images). A German copyright collecting society wanted to provide in its licence agreement with the digital library to use its catalogue of works in the form of thumbnails that 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 website. The matter reached the German courts.
The German referring court asked the CJEU for a ruling on the Copyright Directive 2001/29/EC, under which member states must provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, 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.
The CJEU has now held that the embedding by means of framing, in a website page of a third party, of works protected by copyright and made freely accessible to the public with the authorisation of the copyright holder on another website constitutes a communication to the public where that embedding circumvents protection measures against framing adopted or imposed by the copyright holder.
First, the Court said that altering the size of the works in framing is not a factor in the assessment of whether there is an act of communication to the public, as long as the original elements of those works are observable.
Secondly, the court noted that framing is an act of communication to a public, as its effect is to make the posted element available to all the potential users of a website. Further, the Court stated that, as long as the technical means used by framing are the same as those previously used to communicate the protected work to the public on the original website (ie via the internet), that communication does not satisfy the condition of being made to a new public and so that communication does not fall within the scope of a communication ‘to the public’ under Directive 2001/29.
However, the Court also said that this only applies if access to the works concerned on the original website is not subject to any restrictive measure. If they are, the right holder has authorised from the outset the communication of their works to all internet users.
The Court states that, where the right holder has established or imposed from the outset restrictive measures linked to the publication of their works, they have not agreed to third parties being able to communicate their work freely to the public. On the contrary, their intention was to restrict the public having access to their works solely to the users of a particular website.
Consequently, the Court held that, where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a third party, by means of the technique of framing, constitutes an act of ‘making available that work to a new public’. That communication to the public must, therefore, be authorised by the right holders concerned.
The opposite approach would amount to creating a rule on exhaustion of the right of communication. Such a rule would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of their work. Accordingly, the consequence of such an approach would be that the need to safeguard a fair balance in the digital environment, between the interest of the holders of copyright and related rights in the protection of their intellectual property, and the protection of the interests and fundamental rights of users of protected subject matter, would be disregarded.
Last, the Court said that a copyright holder may not limit their consent to framing by means other than effective technological measures. In the absence of such measures, it might prove difficult to ascertain whether that right holder intended to oppose the framing of their works.