Court Of Justice Of European Union Finds That "framing" A Copyright Work In A Third Party Web Page Constitutes Making That Work Available To A New Public If The Copyright Holder Has Put Restrictive Measures In Place

• Published date: 17 May 2021
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright
• Law Firm: Wiggin
• Author: Mr Ted Shapiro

Stiftung Preu'ischer Kulturbesitz (SPK) operates the Deutsche Digitale Bibliothek, a digital library devoted to culture and knowledge, which networks German cultural and scientific institutions. The library's website contains links to digitised content stored on the internet portals of participating institutions. The library itself only stores thumbnails of the original images.

VG Bild-Kunst, a visual arts copyright collecting society in Germany, said that its licence with SPK for use of its catalogue of works in the form of thumbnails should be conditional on SPK undertaking to implement effective technological measures against third parties "framing" the thumbnails on the library's website. "Framing" consists of dividing a website page into several "frames" and posting an element from another site within a frame, by inserting either a clickable link or an embedded internet link, in order to hide from users the original page to which the element belongs.

SPK argued that including such a term in the licence was not reasonable and issued proceedings in the German courts seeking a declaration that VG Bild-Kunst was required to grant SPK a licence without such condition.

The German Federal Court of Justice asked the CJEU to determine whether "framing" amounted to a communication to the public under Article 3(1) of the Copyright Directive (2001/29/EC), which, if so, allowed VG Bild-Kunst to require SPK to implement effective technological measures against it.

The CJEU held that embedding copyright protected works that are freely accessible to the public with the authorisation of the copyright holder on another website into a third party web page by means of framing amounts to "communication to the public" under Article 3(1) where that embedding circumvents protection measures against framing adopted or imposed by the copyright holder.

The CJEU held that alteration in the size of the works being framed was not a...