CJEU ruling on framing and inline linking 'strengthens protection of authors'

Framing and inline linking are ways to link content on different websites. The content appears to the viewer as part of the page they are visiting but it has been embedded there via a link to another site. Whether such hyperlinks are to be treated differently from a traditional hyperlink, where the internet user can see that he or she is taken to another website, had until recently not been decided by the highest courts.

The CJEU ruled on 9 March that framing and inline linking remain generally permitted, as both forms of linking do not always constitute an act governed by copyright law. Copyright law is only relevant if an author takes technical measures to prevent the embedding of the work in other websites and those measures are circumvented by the linking. If that is the case the author or their licensee, who was required to apply the according technical measures in the course of acquiring the license, has made it clear that they will not reproduce their work unconditionally in public.

Dr Nils Rauer, a copyright law expert at Pinsent Masons, who acted for the Stiftung Preußischer Kulturbesitz (Prussian Cultural Heritage Foundation) in the proceedings, said: "With the current ruling, the CJEU concedes the decisive importance of the author’s declared will. It is for him to decide whether his work is freely accessible on the net or whether this should only be the case 'subject to reservation' - for example by excluding the possibility of framing by third parties."

The ruling came in a dispute between the Stiftung Preußischer Kulturbesitz as the host organisation of the German Digital Library (DDB) and the collecting society Verwertungsgesellschaft Bild-Kunst  (VG Bild-Kunst) about the DDB licensing images to publish on its portal. It centred on whether VG Bild-Kunst was allowed to insist that DDB put technical measures in place to prevent third parties from embedding the licensed images into their own websites using frames or inline links.

The DDB aims to connect German cultural and knowledge institutions digitally and to make their exhibits publicly accessible via a common platform. On the online portal books, works of visual art, sheet music, music and films as well as their respective metadata can be accessed by anyone. The dispute with VG Bild-Kunst concerns thumbnails of the original works. It is therefore about the function of the DDB as a 'digital shop window' on the internet.

"Implementing such type of technical measures inevitably means considerable cost," the DDB said. "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 or framed." In the light of this situation, DDB refused to implement such measures.

In order to create legal certainty, both sides agreed in 2016 to pursue a court decision to clarify the relevant copyright issues. In the meantime, the proceedings have reached the CJEU via the stages of various German courts up to the German Federal Court of Justice (Bundesgerichtshof/BGH).

"By ruling that the individual author can take action from his copyright against third parties if they break through existing protection measures, the CJEU strengthens the position of authors," said Dr. Rauer. "However, the judges emphasise that technical measures are also the only form of expressing a corresponding will. According to the CJEU, without such measures it could be difficult especially for individuals to verify whether the right holder wanted to oppose framing of his works or not."

"This expresses two things: on the one hand, it is always necessary to pay attention to what the respective author wants. This will make it difficult, especially for collective management organisations, to speak with one voice for all the rights holders it represents, as the opinions among them are varied. On the other hand, individuals who want to prevent framing and inline linking will have to invest time and money up front. A one-time installation of protection software is not enough. Continuous maintenance through updates and upgrades will be required," said Dr. Rauer.

"However, the CJEU's judgment first of all brings a greater degree of clarity as to how Articles 3(1) and 6(1) and (3) of the InfoSoc Directive 2001/29 are to be understood in the context of content linking and the technical measures directed against such linking. In this respect, the decision is of considerable significance for the way in which we will be able to find and view copyrighted content on the net in the future. It thus has an impact far beyond the initial dispute. It remains to be seen how the dispute between the DDB and VG Bild-Kunst will proceed before the BGH. It is not yet clear who will win the dispute in the end.”