Stiftung Preußischer Kulturbesitz (SPK) operates the Deutsche Digitale Bibliothek, a digital library devoted to culture and knowledge, which networks German cultural and scientific institutions. The library’s website contains links to digitised content stored on the internet portals of participating institutions. The library itself only stores thumbnails of the original images.

VG Bild-Kunst, a visual arts copyright collecting society in Germany, submitted that its licence with SPK for the use of its catalogue of works in the form of thumbnails should be conditional on SPK undertaking, when using the works covered by the licence, to implement effective technological measures against the framing, by third parties, of the thumbnails on the library’s website. The technique of framing consists of dividing a website page into several frames and posting within one of them, by means of a clickable link or an embedded internet link (inline linking), an element from another site in order to hide from the users of that site the original page to which that element belongs.

SPK contended that including such a term in the licence was not reasonable in the light of copyright, and issued proceedings in the German courts seeking a declaration that VG Bild-Kunst was required to grant SPK a licence without such condition.

The German Federal Court of Justice asked the CJEU to determine whether framing amounted to a communication to the public under Article 3(1) of the Copyright Directive (2001/29/EC), which, if so, would permit VG Bild-Kunst to require SPK to implement effective technological measures against it.

The CJEU held that embedding copyright protected works that are freely accessible to the public with the authorisation of the copyright holder on another website into a third party web page by means of framing constitutes a communication to the public where that embedding circumvents protection measures against framing adopted or imposed by the copyright holder.

The CJEU held that alteration in the size of the works being framed was not a factor in the assessment of whether there was an act of communication to the public, so long as the original elements of those works were perceptible.

Further, the technique of framing is an act of communication to a public, since the effect of the technique is to make the posted element available to all potential users of a website.

However, if the technical means used in the framing technique are the same as those previously used to communicate the protected work to the public on the original website, i.e. via the internet, then that communication is not being made to a new public. In that case, the “communication” does not fall within the scope of a communication “to the public” under Article 3(1). However, that will only apply where access to the works on the original website is not subject to any restrictive measures, as without putting such measures in place, the rights holder will have, from the outset, authorised the communication of the works to all internet users.

On the other hand, where the rights holder has, from the outset, instituted restrictive measures linked to the publication of his or her works, he or she has not agreed to third parties being able to communicate his or her works freely to the public. On the contrary, his or her intention will have been to access to his or her works solely to the users of a particular website.

Consequently, the CJEU 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” the work to a new public. That communication to the public must, therefore, be authorised by the rights holder.

The CJEU said that to find otherwise would amount to creating a rule of exhaustion of the right of communication, which would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his or her work. Such an approach would fail to have regard to the need to safeguard a fair balance in the digital environment between the interests of rights holders and the interests and fundamental rights of users of protected works.

Finally, the CJEU said that a copyright holder cannot limit his or her consent to framing by using 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 his or her works. (Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz EU:C:2021:181 (9 March 2021) — to read the judgment in full, click here).