Advocate General Szpunar has delivered his opinion in the case of Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz.
He said that the embedding in a webpage of works from other websites by means of automatic links (inline linking) requires the authorisation of the rights-holder in those works.
However, embedding by means of clickable links using the framing technique does not require such authorisation, which is deemed to have been given by the right-holder when the work was initially made available. The same applies even where that embedding circumvents technological protection measures against framing adopted or imposed by the rights-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 opinion
The Advocate General proposes that the Court rule that the embedding in a webpage of works from other websites (where those works are made freely available to the public with the authorisation of the copyright holder) by means of clickable links using the framing technique does not require the copyright holder’s authorisation, since he or she is deemed to have given it when the work was initially made available.
The same applies even where that embedding by way of framing circumvents technological protection measures against framing adopted or imposed by the copyright holder. Such measures restrict neither access to a work nor even a means of accessing it, but only a manner of displaying it on a screen. In those circumstances, there can be no question of a new public, because the public is always the same: the public of the website targeted by the link.
However, according to the Advocate General, embedding such works by means of automatic links (inline linking, the works being displayed automatically on the webpage viewed as soon as it is opened, without any further action on the part of the user), normally used to embed graphics and audiovisual files, requires the right-holder’s authorisation.
Where those automatic links lead to works protected by copyright, there is, from both a technical and a functional point of view, an act of communication of those works to a public which was not taken into account by the copyright holder when the works were initially made available, namely the public of a website other than that on which that initial making available of the works took place.
In that regard, an automatic link makes a resource appear as an integral element of the webpage containing that link. Therefore, for a user, there is no difference between an image embedded in a webpage from the same server and one embedded from another website. For that user, there is no longer any link with the original site: everything takes place on the site containing the link. According to the Advocate General, it cannot be presumed, that the copyright holder took such users into account when initially authorising the making available of the work.
The approach that the Advocate General proposes would give copyright holders legal instruments to protect against unauthorised exploitation of their works on the internet. This would strengthen their negotiating position when licensing the use of those works. However, although the copyright holder’s authorisation is necessary in principle, some automatic links to works made available to the public on the internet will fall within one of the exceptions such as quotation, caricature, parody or pastiche.
With respect to the circumvention of technological protection measures, the Advocate General notes that in principle, Directive 2001/29 requires member states to ensure legal protection against such circumvention. However, under EU case-law, that protection applies only in the light of protecting the copyright holder against acts requiring his or her authorisation.
Since framing does not require such authorisation, technological protection measures against framing are not therefore eligible for the legal protection of the Directive. In contrast, as inline linking requires the copyright holder’s authorisation, technological protection measures against inline linking are eligible for that legal protection.
