10 September 2020CopyrightMuireann Bolger

Some links on websites require rights owner’s approval, says AG

Embedding works on websites by means of automatic links (inline linking) requires the authorisation of rights owners of those works, an advocate general (AG) has told the Court of Justice of the European Union (CJEU).

AG Maciej Szpunar also said embedding by means of clickable links (framing) does not require such authorisation.

The AG’s opinion, published today, September 10, relates to a dispute between Stiftung Preußischer Kulturbesitz, a foundation under German law, which operates a digital library devoted to culture and knowledge, and Verwertungsgesellschaft Bild-Kunst (VG Bild-Kunst), a copyright collecting society for the visual arts in Germany.

The two organisations negotiate a licence agreement for the use of its catalogue of works in the form of thumbnails. The foundation brought an action before the German courts seeking a declaration that VG Bild-Kunst was required to grant the licence in question without making that licence conditional on the implementation of technological measures.

In today’s opinion, Szpunar proposed that the CJEU rule that the embedding in a webpage of works from other websites (where those works are made freely available to the public with the authorisation of the copyright holder) by means of clickable links does not require the copyright holder’s authorisation.

According to German court case-law, the right holder’s protection applies only when protecting the copyright holder against acts which require his or her authorisation.

The AG holds that this new approach would give copyright holders legal instruments to protect against unauthorised exploitation of their works on the internet.

The AG argued that this would strengthen the rights owner’s negotiating position when licensing the use of those works. He added that it cannot be ruled out that some automatic links to works made available to the public on the internet fall within one of the exceptions to that authorisation, in particular for cases of quotation, caricature, parody or pastiche.

He also held that when an automatic link makes a resource appear as an integral element of the webpage containing that link, that there is no difference between an image embedded in a webpage from the same server and one embedded from another website.

Since framing does not require such authorisation, technological protection measures against framing are not eligible for legal protection, he noted.

By contrast, since inline linking requires the authorisation of the copyright holder, technological protection measures against inline linking are eligible for that legal protection, he added.

AGs’ opinions are not binding on the court, although are considered influential in shaping the CJEU’s final decision

The judges of the CJEU are now beginning their deliberations in this case. Judgment will be given at a later date.

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