In the preliminary ruling on the copyright admissibility of ‘framing’, a technique for the integration of external internet content, Advocate General Szpunar submitted his proposal for a decision to the ECJ. He argues that framing should not be treated as copyright-relevant use. In his view, however, the specific technical implementation of the embedding solution is crucial.
In his Opinion (case C-392/19), the Advocate General commented on the question submitted by the German Federal Court of Justice as to whether one can assume a public communication subject to authorisation of an online-accessible, copyrighted work if it is embedded on another’s website by means of framing and thereby circumvents protective measures against the use of this technique, stating that framing does not constitute a new communication to the public. He sees this differently in the case of ‘inline linking’.
The case concerns a legal dispute between the German collecting society Bild-Kunst (VG Bild-Kunst) and the foundation Stiftung Preußischer Kulturbesitz, which offers links to digitised and partially copyrighted content on web portals of numerous cultural and knowledge institutions within the scope of the Deutsche Digitale Bibliothek (DDB) which it operates. VG Bild-Kunst only agreed to the conclusion of a usage agreement with respect to the preview images stored by the DDB regarding the linked content, on the condition that the foundation commits itself to effective technical protective measures against framing by third parties.
The German Federal Court of Justice as the second court of appeal makes its decision dependent on the question of whether the embedding of the works on third-party sites, which takes place by circumventing such safeguards, is to be qualified as a public communication within the meaning of Art. 3(1) of the InfoSoc Directive (2001/29/EC). If that is the case, the rights of the members of VG Bild-Kunst are affected and the contractual obligation to apply technical measures against framing is lawful.
Framing is allowed; inline linking is not
In his Opinion the Advocate General differentiates strictly with regard to the embedding technique used. Thus, in the case of framing, the content of third-party websites is inserted into a website in such a way that it is displayed by one-off clicks within the page and is generally recognisable as third-party content. Inline linking, on the other hand, is characterised by the fact that the embedded content is automatically loaded when the website containing the link is opened and is presented to the visitor as part of the original website.
In the Advocate General’s view, only the latter integration technique is to be understood as a separate public communication subject to authorisation within the meaning of Article 3(1) of the InfoSoc Directive. He justifies this by saying that in the case of framing, no new audience will be opened up in the view of the rights holder. Like setting up a simple hyperlink, embedding is directed at the public which the rights holder already had in mind when originally making his/her content available, namely all potential visitors to the freely accessible website. Users who get to see the target website on the page containing the link also constitute the audience of that website.
The situation is different in the case of inline linking, the Advocate General argues. Since the embedded work is loaded automatically and without the user intervening, it is not apparent to the user that the content accessed is not an integral part of the visited website. As a result, such linking is equivalent to reproduction. Without a visible connection to the original website, the work is only available to the audience of the linking website. The Advocate General said that the presumption that the copyright holder wished to take this audience into account when granting permission to make the content available to the public had to be rejected.
Legality despite circumvention of technical protection measures
In the opinion of the Advocate General, the copyright admissibility of framing does not change even if the embedding takes place by circumventing technical protective measures. The decisive criterion of the rights holder’s awareness of the audience for his/her content is only seemingly contradictory with this view. Although the fact that protective measures are taken shows that an audience reached via framing is precisely not meant to be covered by the permitted usage, the Advocate General counters this argument by stating that the beneficiary often does not decide on protective measures itself, but third parties such as the site operators do so. In fact, also in the present case it was the collecting society and not the originators of the work who demanded protection measures. Thus, if protective measures are implemented or omitted, this does not always allow conclusions to be drawn about the rights holder’s intention.
The Advocate General also pointed out the lack of restrictive effects of such measures. He said that such measures were limited to the message that framing is not possible and instead offered the retrieval on the original page. The protective measures therefore did not limit the potential audience, so that circumventing the precautions did not enlarge the audience and therefore did not constitute an act of communication to the public.
It remains to be seen whether the ECJ will side with this opinion and conclude that framing does not qualify as a communication to the public, even where protective measures are circumvented. As a rule, however, the ECJ follows the Advocate General’s proposals. As for the proceedings at hand, this would probably mean that the German Federal Court of Justice, on the basis of its previous statements, would deny an exception to VG Bild-Kunst’s obligation to conclude a contract and rule in favour of Stiftung Preußischer Kulturbesitz.
- Johannes Kreile, Partner, NOERR
- Jan Weismantel, Associate, NOERR
Compliments of Noerr – a member of the EACCNY.