Stiftung Preußischer 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 factor in the assessment of whether there was an act of communication to the public, so long as the original elements of those works were perceptible.

Further, the technique of framing is an act of communication to a “public”, since the effect of the technique is to make the posted element available to all potential users of a website.

However, the CJEU said, if the technical means used in the framing technique are the same as those previously used to communicate the protected work to the public on the original website, i.e. via the internet, then the communication is not being made to a “new” public. In that case, the “communication” would not fall within the scope of Article 3(1).

However, that will only apply where access to the works on the original website is not subject to any restrictive measures, as without putting such measures in place, the rights holder would have authorised the communication of the works to all internet users from the outset.

Therefore, the CJEU held that where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a third party, by means of “framing”, constitutes an act of “making available” the work to a “new public”. That communication to the public must, therefore, be authorised by the rights holder. (Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz EU:C:2021:181 (9 March 2021) — to read the judgment in full, click here).