Kammergericht Berlin (Court of Appeal) Decides Copyright Dispute in Favour of the Deutsche Digitale Bibliothek
Press Release of the Deutsche Digitale Bibliothek
In a currently pending test case dealing with issues of technological measures to prevent framing, the Court of Appeal passed a ground-breaking judgement in the second instance on 18th June 2018 (case number: 24 U 146/17). The judges came to the conclusion that an association for the protection of copyright must not make the granting of rights of use to thumbnails to the condition that the user of these thumbnails provides its website with technological measures which make it impossible for third parties to integrate these thumbnails into their own website by using a frame.
The Deutsche Digitale Bibliothek (DDB) and the association for the protection of the copyright VG Bild-Kunst are face-to-face in the proceedings. During constructive negotiations, both parties (almost) agreed on a licensing agreement enabling the DDB to even display thumbnails of individual works that are found in German museums and archives on its portal, apart from various metadata. The licensing agreement was, at the same time, supposed to provide legal certainty to the cultural and knowledge institutions cooperating with the DDB.
The last unclarified issue was and is the “framing protection” requested by the VG Bild-Kunst. As the parties were unable to come to an agreement regarding this, both parties agreed on a judicial clarification of this legal question. The Court of Appeal refused the action for a declaratory judgment filed by the DDB without dealing with the matter in dispute. As a result, this was not helpful to any of the parties. The Court of Appeal has now ruled that such a framing protection must not be requested. However, due to the fundamental significance of the matter, the judges have allowed an appeal. Thus, the Federal High Court of Justice is expected to have the final word.
What is the legal dispute about?
The core issue of the legal dispute is the question whether an association for the protection of copyright is allowed to make the licensing of the copyrights utilized by it in trust subject to the condition that the licensee prevents that third parties link the contents displayed by using technological means. According to the consistent legal authority of both the Federal High Court of Justice and the European Court of Justice, framing is to be treated just as the simple linking of contents on the Internet and does not constitute a relevant copyright related act. In particular, this does not constitute the criteria of § 19a UrhG (the right of the communication to the public). Things can only be seen from a different perspective if the link setter makes the content in question – such as a picture, video or text – accessible to a new audience. This is the case if, for example, any access restriction is circumvented unlawfully by means of the hyperlink (e.g. a paywall).
The VG Bild-Kunst wishes to draw parallels here and argues that, from an economic point of view, the integration of a picture by framing prevents the legal holder from enjoying the fruits of its work just as the copying of the picture. Therefore, there must be no “right to framing”. As the trustee of artists, it must therefore be entitled to make an effective framing protection a precondition for licensing.
To the contrary, the DDB is of the opinion that associations for the protection of copyright are subject to a licensing obligation and may, according to § 34 VGG, attach appropriate conditions to the granting of a licence. However, the request to prevent a behaviour by means of technological measures – which unquestionably cause additional costs –, which is deemed as insignificant copyright related act , cannot be characterized as an appropriate licence condition.
What does the Court of Appeal say?
In their appeal judgment, the Berlin judges have largely supported the DDB’s arguments. Pursuant to the consistent legal authority of the Federal High Court of Justice and the European Court of Justice, it is emphasized that framing indeed does not constitute the communication to the public within the meaning of § 19a UrhG. In a comprehensive consideration, the DDB’s interest in the granting of licences without the requirement to implement technological protective measures against framing therefore prevails. In this context, it is stressed that such measures are precisely not to be equated with the protection against any unauthorised use of the work within the meaning of § 95a UrhG. For even any framing protection was implemented, the respective work would remain publicly accessible. Consequently, the link setter does not provide access to the linked picture, video or text for any new audience.
The Court of Appeal thus agrees fully with the DDB. The latter does not have to expose itself to “continuous competition with new attempts at circumvention,” the judges say. In this respect, the VG Bild-Kunst is also unable to base itself successfully on its statutorily specified aim of strengthening its members’ rights.
The Federal High Court of Justice will deal with the legal dispute soon. The proceedings which are deliberately pursued by both parties as a test case apparently have great relevance for the legal classification of framing. A presentation before the European Court of Justice does not seem to be excluded even if the judgement now given by the Court of Appeal offers a very good and well-founded basis for the appeal decision. It remains exciting in any case! For the time being, however, the DDB can rightly feel itself vindicated in its view of (copyright related) matters.
In the proceedings, the DDB is represented by the lawyers Dr. Nils Rauer, MJI and Christina Kesting (both Hogan Lovells, Frankfurt).
Download Press Release (PDF): 10.07.2018 - Kammergericht Berlin (Court of Appeal) Decides Copyright Dispute in Favour of the Deutsche Digitale Bibliothek