Embedding of work on website through framing is a communication to the public when measures against framing are taken17-03-2021 Print this page
The embedding, by means of framing, of a work available on a freely accessible website with the consent of the right holder, on the website of a third party, constitutes ‘communication to the public’ if, in doing so, the adopted or imposed measures to prevent framing are circumvented: to permit such inclusion would be incompatible with the exclusive and inexhaustible right of the copyright holder to authorise or prohibit any communication to the public of his works pursuant to Article 3(1) and (3) of the Copyright Directive.
VG Bild-Kunst is a visual arts copyright collecting society in Germany and Stiftung Preußischer Kulturbesitz (‘SPK’) is a German cultural heritage foundation. SPK is the operator of the Deutsche Digitale Bibliothek (DDB), a digital library devoted to culture and knowledge. VG Bild-Kunst maintains that the conclusion with SPK of a licence agreement for the use of its catalogue of works in the form of thumbnails should be subject to the condition that the agreement include a provision whereby the licensee undertakes, when using the protected works and subject matter covered by the agreement, to implement effective technological measures against the framing by third parties of the thumbnails of the protected works or subject matter displayed on the DDB website.
The referring court referred the following question to the Court for a preliminary ruling: ‘Does the embedding of a work – which is available on a freely accessible website with the consent of the right holder – in the website of a third party by way of framing constitute communication to the public of that work within the meaning of Article 3(1) of Directive 2001/29 where it circumvents protection measures against framing adopted or imposed by the right holder?’
The Court of Justice considered that the main proceedings are precisely concerned with a situation where the copyright holder is seeking to make the grant of a licence subject to the implementation of measures to restrict framing in order to limit access to his or her works from websites other than those of his or her licensees. Where protected works that are freely available on certain websites with the authorisation of the copyright holder are embedded on a website by a third party using the technique of framing, and where that holder has made or imposed technical measures against framing, such communication to the public must be regarded as 'making that work available to a new public'. To that end, the Court considers that a copyright holder cannot be regarded as having consented to any act consisting in the communication to the public by a third party for the benefit of all internet users of his protected works if he has adopted restrictive measures against the framing of his works.