News and developments
THE CJEU DELIVERS ITS JUDGEMENT IN CASE-392/19 ADDING TO THE JURISPRUDENCE ON WEB LINKING
On March 9, 2021, the CJEU delivered its judgement in the case.
As a short reminder, the case concerns a conflict between Verwertungsgesellschaft Bild-Kunst (‘VG Bild-Kunst’), a copyright collecting society for the visual arts in Germany and Stiftung Preußischer Kulturbesitz (‘SPK’), a foundation under German law. According to the terms of the license offered by VG Bild-Kunst for the use of its digital library, the Deutsche Digitale Bibliothek (“DDB”), SPK was obliged to use technical measures to prevent third parties from framing the thumbnails of the protected works displayed on the DDB website.
The dispute that followed resulted in a question being referred to the CJEU, as to whether embedding a work (which is otherwise available on a freely accessible website with the consent of the rightsholder) in the website of a third party, by way of framing, constitutes communication to the public of that work within the meaning of Article 3 paragraph (1) of the Directive 2001/29/EC[2], where embedding occurs through circumvention of the protection measures taken or instituted by the rightsholder.
Communication to the public is an exclusive right of the copyright holder. The stake of the preliminary question is therefore related to whether embedding copyrighted content by using the framing technique, in breach of technological measures imposed by the copyright holder, would constitute copyright infringement.
This article contains general information and should not be considered as legal advice.
[1] Available here: https://www.lexology.com/library/detail.aspx?g=6b570416-0a0a-4015-a2c8-9a627543eaec. [2] Article 3 paragraph (1) provides that “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, 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 reasoning of the CJEU
Although the ruling was not unexpected in terms of outcome, it was interesting to see that the CJEU’s reasoning diverged under certain aspects from the one proposed by Advocate General Maciej Szpunar in his Opinion delivered last October, namely:- while with regards to the type of used hyperlinks (clickable versus non-clickable), Advocate General Maciej Szpunar holds that they should be viewed differently, the CJEU decided not to depart from its traditional interpretation that all types of hyperlinks are to be treated in the same manner;
- while in relation to the technology used for hyperlinks Advocate General Maciej Szpunar has analysed the effects of different technologies, the CJEU has essentially based its reasoning on the rightsholder perspective.
- any act by which a user gives, in full knowledge of the consequences of his behaviour, access to protected works is likely to constitute an act of communication;
- protected works must effectively be communicated to a public, meaning that the said communication must target an indeterminate number of potential recipients;
- the communication is considered to be made to a new public to the extent the latter is different than the one envisaged by the author when the initial authorisation was given; this is the case when the technology used is different from the initially approved technology.
Conclusions
Apart from certain divergent aspects, the CJEU decision is in line with the Opinion of Advocate General Szpunar. At the same time, by reinforcing the rights of copyright holders in the context of automatic linking, the decision shows the continued commitment of the European institutions to interpret the law as to offer authors a high level of protection. The decision will represent a very important benchmark with regards to the consent provided by a rightsholder in relation to hyperlinking. The aspects underlined by the Court with regards to consent will provide rightsholders and courts with a test to establish when framing of a website’s content is allowed or not. Moreover, the reasoning offered by CJEU seems to preclude the use of purely contractual means of restricting the embedding of such content on other websites. To this end, oversight measures might have to be taken by rightsholders on how licensees fulfil their obligations to protect the content. In this regard, rightsholders will need to ensure either that their licensees maintain the measures that they themselves have placed on the protected content, or that such licensees institute their own effective technological measures.This article contains general information and should not be considered as legal advice.
[1] Available here: https://www.lexology.com/library/detail.aspx?g=6b570416-0a0a-4015-a2c8-9a627543eaec. [2] Article 3 paragraph (1) provides that “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, 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.”