Test Case German Digital Library vs. VG Bild-Kunst

Press Release Deutsche Digitale Bibliothek

Berlin, March 12 2021

Court of Justice of the European Union rules on framing technology

Earlier this week, the Court of Justice of the European Union (CJEU) handed down its decision in a preliminary ruling case (Ref.: C-392/19), which was initiated back in 2019 by the German Federal Supreme Court in Karlsruhe (Ref.: I ZR 113/18). Parties to the underlying lawsuit are Stiftung Preußischer Kulturbesitz (Prussian Cultural Heritage Foundation) as the host organisation of the German Digital Library (Deutsche Digitale Bibliothek – DDB) and the Collective Management Organisation (CMO) VG Bild-Kunst. Subject-matter of the dispute is the question whether VG Bild-Kunst may legitimately make the licensing of image rights for publication on DDB’s online portal dependent on DDB implementing technical measures preventing third parties from embedding the licensed images into their own websites by way of frames or inline links. Implementing such type of technical measures inevitably means considerable cost. Moreover, a great number of authors and notably artists want to be found on the net and therefore take no offence with their images being linked and/or framed. In the light of this situation, DDB refused to implement such measures.

Legal Certainty being the core aim

In order to create legal certainty, both sides agreed to aim for a court decision to clarify the relevant copyright issues. That was back in 2016. In the meantime, the proceedings have reached European level. The German Federal Supreme Court referred some questions to Luxembourg after the Regional Court of Berlin and the Appeal Court of Berlin had handed down their decisions in 2017 and 2018. The CJEU now sitting over the matter illustrates the importance of the relevant legal questions not only for the parties to the very lawsuit, but far beyond. It questions at stake are fundamental to how access will be granted to copyright-protected content, how information is searched for and found, and what role technical measures preventing certain types of hyperlinking will play in future times.

What is noteworthy in this context is the fact that we do not talk about technical measures blocking access altogether, i.e. in the sense of a pay wall. Rather, technical measures are at issue that are regimenting how access is granted. Internet users can view the images, but they shall not integrate them – without copying the image – by means of an embedded link (frame or inline link) into their own website. Such type of linking happens every minute without the viewer even being aware of the fact that image he or she sees is not an integral part of the website just viewed. Whether frames and inline links are to be treated differently from a "classic" hyperlink one has to click on had not yet been decided.

The judgement

Over the recent years, the CJEU has repeatedly emphasised the importance of hyperlinks for the functioning of the Internet. The judges also pointed to the freedom of expression and information fostered by linking content on the net. At the same time, the court has also stated that the European Union strives for a high level of protection in the area of intellectual property. Copyright should therefore enjoy effective protection and authors should receive a fair compensation for the use of their works. To this end, copyright law also provides for technical measures used as protection for copyright-protected content. However, up until now, the discussion has always been around technical protection against access as such, not about regulating the "how" of access.
In this week‘s judgment the CJEU states that 

„Article 3(1) of Directive 2001/29 must be interpreted as meaning that the embedding on a third party's website, by way of framing, of works protected by copyright and made freely available to the public on another website with the permission of the copyright owner constitutes a communication to the public within the meaning of the above provision if it is carried out in circumvention of protective measures against framing taken or arranged by the right holder.“

The judges thus recognise that certain types of linking can constitute a “communication to the public” as defined by the European copyright. This is particularly the case if the linking is carried out by way of circumventing technical measures implemented by the right holder, which aim at preventing framing or inline linking by third parties. The individual right holder can therefore oppose the placing of such hyperlink given that, due to the CJEU’s reasoning, it represents an unauthorised act of use by the said third party.

The implementing of technical measures is understood as an expression of the author's will. The author permits the communication to the public on the Internet "subject to certain reservations". This means that the Internet user may see the respective works only in the context of a specific page. The CJEU even goes one step further. In order to ensure legal certainty and the proper functioning of the Internet, the copyright holder shall not be allowed to restrict his permission in any way other than by effective technical measures within the meaning of Article 6(1) and 6(3) of the Directive 2001/29.

What will be the next steps?

The proceedings will now continue before the German Federal Supreme Court in Karlsruhe. The CJEU has clarified the general interpretation of Article 3(1) of the Directive 2001/29. It is now for the domestic courts to apply the law to the facts before them. Apparently, the judges in Luxembourg have placed a strong focus on the individual author and his or her expressed will. The individual creator shall have the right to determine the level of use permitted. The right to communicate to the public can be granted "subject to reservations", namely on the premise that framing or inline linking by third parties is technically prevented.

Such strengthening of the rights of the individual author is fully in line with DDB’s way of thinking. As a cultural institution and mediator between creators, cultural and knowledge institutions, and society, we see copyright as a highly valuable asset. This has been made clear throughout the entire lawsuit. DDB also takes the position that the marketing of high-resolution images in particular is the right of the author or his or her representatives. What we are primarily concerned about as DDB is the fact that, in an increasingly digital society, we need to provide ways allowing artistic works to be found online.

It is also worth mentioning that DDB initially offered to VG Bild-Kunst an increased licence fee in order to price in any possible framing by third parties. However, we doubt that technical measures should be the preferred means of choice in the context of providing digital access to culture. Rather, it will be crucial to create a general understanding in society that not everything that can be found on the net is for free.
DDB’s website is a "digital shop window" of art and culture for everyone. It aims at supporting cultural institutions, those who create culture and creatives in general. It is therefore a matter of course for DDB to remove thumbnails from its portal when called upon to do so by rights holders. In this respect, one can say that DDB already complies with the CJEU ruling. However, DDB and its digital offer are expressly welcomed by a large number of authors. A distinction will therefore have to be drawn between the individual rights holder who wants his works to be made available to the public "with reservations" on the one hand, and a CMO that demands the blanket implementation of technical measures for all the authors and artists it represents on the other hand. For, according to DDB's perception, the opinion among authors is not so unanimous. However, the German Federal Supreme Court will certainly look into this with adequate detail.

Stiftung Preußischer Kulturbesitz (Prussian Cultural Heritage Foundation) as the host organisation of the German Digital Library is represented by Dr. Nils Rauer, MJI (Pinsent Masons, Frankfurt) in this case.

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Deutsche Digitale Bibliothek
The Deutsche Digitale Bibliothek links the digital holdings of cultural and knowledge institutions in Germany and makes them centrally accessible. It offers everyone free access to digitised museum objects, books, musical works, monuments, films, documents and many other cultural treasures via the internet. The Deutsche Digitale Bibliothek functions as a network; it links and presents the digital offerings of its partners and makes a contribution to the democratisation of knowledge and resources. 

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