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Websites displaying links to copyrighted material under contract may be subject to restrictions imposed by the copyright owner, the Court of Justice for the European Union (CJEU) has ruled.
The decision holds that a copyright owner can restrict linking by imposing a contractual obligation on a licensee to implement technological measures to protect works against infringement.
An important ruling for copyright owners
“Today’s ruling is an important one that substantially adds to the construction of the (not-always-idyllic) relationship between linking and the right of communication to the public,” said Eleanora Rosati, of counsel at Bird & Bird.
Rosati pointed out that until now the question of whether contractual restrictions on access could be imposed by rights owners had not been explicitly addressed by the CJEU.
The key aspect of the ruling centres on the conditions upon which contractual restrictions to linking can be imposed, Rosati explained.
“The CJEU explicitly said that consent can be only limited by adopting technological measures. This ensures legal certainty and the proper functioning of the internet,” she noted.
The case arose after the two parties negotiated a licence fee and a provisional agreement enabling SPK to display thumbnails of the society’s individual works on its portal.
However, the society claimed that according to standard procedures on copyright licensing agreements, SPK should adopt technical measures preventing third parties from integrating the thumbnails via framing.
Framing, known as embedding, allows third-party content to be included within an online web page.
SPK argued that it was unreasonable to demand the prevention of third-party acts of framing through costly technical measures. It contended that framing should be viewed in the same way as hyperlinking, which does not constitute copyright infringement under German or EU copyright law.
SPK filed a complaint against the society at the Regional Court of Berlin in 2016, 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. The court declined to rule on the lawsuit and, in 2018, the Berlin Court of Appeal agreed that the request made by the society was unreasonable.
It confirmed that the society is obliged to grant rights of use to the thumbnails without requiring SPK to implement technical measures to prevent third parties from integrating the thumbnails by using a frame.
The court held that framing does not count as a communication to the public within the meaning of copyright law.
When the society again appealed, the Bundesgerichtshof (Federal Court of Justice, Germany) asked the CJEU to determine whether framing must be held as a communication to the public.
In September, advocate general Maciej Szpuna told the CJEU that using automatic links to embed works from other websites in a web page should be regarded as a communication to the public, requiring the consent of the relevant rights holder.
Victory for VG Bild-Kunst
The grand chamber of the court this week ruled in favour of the society. In its decision, it held that “the embedding by means of framing, in a website page of a third party, of works protected by copyright and made freely accessible to the public with the authorisation of the copyright holder on another website constitutes a communication to the public”.
The court found that the effect of the framing technique is to make the posted element available to all the potential users of a website. Consequently, the court held that this communication to the public must be authorised by the copyright owners.
The court also held that a copyright owner may not limit his or her consent to framing by means other than technological measures. “In the absence of such measures, it might prove difficult to ascertain whether that right holder intended to oppose the framing of his or her works.”
Rosati explained that while the CJEU endorsed the AG’s recommendation to revisit existing case law, it did not adopt his proposed differential treatment between different types of links, nor did it offer to revisit the 'new public' criterion.
She argued that this may lead to unbalanced copyright rulings in the future.“After today, it appears that different links might have to be (still) treated alike. While this may serve to avoid the risk of technological obsolescence of CJEU case law, it may also lead to outcomes that are not necessarily balanced. Secondly, the 'new public' will likely continue raising interpretative doubts and very concrete questions of application.”
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