Update: Test Case German Digital Library vs. VG Bild-Kunst

Berlin, July 26 2021

Update 26 July 2021: New Date of Pronouncement of Judgment

Whilst the Federal Court of Justice had originally scheduled the date of pronouncement of a judgment for 29 July 2021, the judges have now postponed that date to 9 September 2021. As soon as the decision will be handed down, the German Digital Library will comment on its content and state its position in the usual manner.

Federal Court of Justice in Karlsruhe hears case on framing technology

Following the Court of Justice of the European Union’s (CJEU) preliminary ruling on the interpretation of the term "communication to the public" at the beginning of March (Ref.: C-392/19), it was now for the German Federal Court of Justice in Karlsruhe to pick up the proceedings by way of an oral hearing (Ref.: I ZR 113/18). The German judges had initiated the preliminary proceedings in Luxembourg in 2019 in order to obtain clarity regarding the interpretation of certain aspects of European copyright law.

This clarity does now exist thanks to the CJEU’s latest ruling. In principle, authors can demand that the works they have created, if they are made available through a website by means of a small image (thumbnail), must be protected by means of technical measures against third-party framing or inline linking. What is unclear yet is whether a collective rights management organisation may make such technical measures a blanket condition for the licensing of such images or whether they need to obtain an explicit mandate from the authors the organisation represents. Also, the question of reasonableness is still to be looked at. For, implementing the respective technical measures is as such cost-intensive and it cannot be taken for granted that effective technical offerings exist as of today. Unsurprisingly, these two aspects consumed most of the oral hearing before court.

The pending legal dispute, rightly declared to be a "test case", is between the Stiftung Preußischer Kulturbesitz (Prussian Cultural Heritage Foundation) as the sponsoring organisation of the German Digital Library (DDB) and the Verwertungsgesellschaft Bild-Kunst (VG Bild-Kunst). Both sides vividly argued their respective positions before the First Civil Senate, which is responsible for copyright law. The Senate finally indicated, after preliminary deliberations, its tendency to further findings of fact being required in order to be able to decide on the merits of the case.

However, it is not for the Federal Court of Justice itself to explore the factual side of the matter. Rather, the Court of Appeal in Berlin (Kammergericht) is in charge of determining such factual findings. The First Civil Senate therefore made it fairly obvious that a further referral, this time back to the courts in Berlin, is the most likely outcome of the ultimate considerations. In Berlin, both sides will be given the opportunity to present their respective arguments as to how the two remaining aspects ought to be valued. If necessary, both parties will also be allowed to render new evidence.

For the time being, however, the First Civil Senate has set the date for the pronouncement of a decision for Thursday, 29 July 2021. Whether it will be the referral decision expected by all those who were present in the court room ultimately remains to be seen.

Stiftung Preußischer Kulturbesitz (Prussian Cultural Heritage Foundation) as the sponsoring 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 German Digital Library connects the digital stock of cultural and knowledge institutions in Germany and makes them centrally accessible. It offers everyone free digital access to digitised museum objects, books, pieces of music, monuments, films, documents, and many other cultural treasures. The German Digital Library acts as a network, it links and presents the digital offerings of its partner institutions and contributes to the democratisation of knowledge and resources.

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