The CJEU has already grappled with the issue of hyperlinking by way of framing[1] numerous times. In previous cases, the court dealt with content that is originally published on websites without any restrictive measures (Svensson and Others, BestWater International), stating that linking to such content by way of framing does not require the rights holders’ consent, based on the argument that the copyright holder (already) envisaged all internet users as the relevant public (to whom he or she wants to communicate its work to). Third parties may thus freely ‘frame’ such content, and such framing does not constitute a communication to the public under the the InfoSoc Directive[2].

Against this background, the CJEU now addresses the question of whether rights holders may contractually prevent other parties from framing copyright protected works made available on the internet. In its ruling VG Bild-Kunst (C-392/19) handed down on 9 March 2021, the CJEU clarified that such contractual restrictions are in line with EU copyright law – but only if such restrictions concern the implementation of DRM measures.

The decision in a nutshell

In the proceedings between VG Bild-Kunst, a visual arts copyright collecting society in Germany, and Stiftung Preußischer Kulturbesitz (SPK), a German cultural heritage foundation and the operator of a digital library devoted to culture and knowledge, the CJEU was called upon for a preliminary ruling concerning the interpretation of Article 3 (1) of the InfoSoc Directive.

VG Bild-Kunst refused to conclude a licence agreement with SPK for the use of its catalogue of works (SPK’s library contains links to digitalised content stored on the internet portals of participating institutions – the library itself, however, only stores thumbnails of the original images), unless the agreement contained a provision requiring SPK to implement effective technological measures to prevent the framing of such protected work or subject matter by third parties.

Can VG Bild-Kunst impose the implementation of such measures on its licensees?

The Bundesgerichtshof (Federal Court of Justice, Germany) has called upon CJEU to clarify this question and the CJEU has ultimately answered in the affirmative.

In its reasoning, the CJEU states 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 the technique of framing constitutes an act of ‘making available that work to a new public’. Such communication to the public must, therefore, be authorised by the rightsholders concerned.

However, the CJEU also stressed that a copyright holder may not limit his or her consent to framing by means other than adopting technological measures, within the meaning of Article 6 (1) and (3) of the InfoSoc Directive – i.e. digital rights management tools. In the absence of such measures, it might prove difficult, particularly for individual users, to ascertain whether that right holder intended to oppose the framing of his or her works. To do so might prove even more difficult when that work is subject to sub-licences (see, by analogy GS Media, paragraph 46). Hence, to “ensure legal certainty and the proper functioning of the internet” the copyright holder’s consent can only be limited by adopting technological measures in the sense of Article 6 (1) and (3) of the InfoSoc Directive.

Key take-aways

  • Where the copyright holder has imposed technological measures to restrict framing, the embedding of a work in a website page of a third party by means of that technique constitutes making that work available to a new public.
  • Consequently, such framing must be authorised by the copyright holder.
  • However, contractual restrictions can only be imposed by requiring licensees to implement technological measures.

Practical implications

For businesses publishing content on the internet, the decision carries useful guidance: Content that is accessible to the public only behind paywalls or is otherwise protected by way of technological measures, can’t be “framed” by third parties without authorisation. When licensing such content to third parties, those third parties can also be required to adopt such technological measures to prevent unauthorised framing by third parties. Licensees will become liable if they do not adopt the measures requested by the copyright holder. In this context, contractual clauses containing an obligation on the licensee to prevent others from framing by means other than technological measures would, however, be unenforceable as such limitations would have no visibility to the public and result in widespread uncertainty about whether hyperlinking to such content by way of framing would be lawful or not.

With VG Bild-Kundt, the CJEU clearly intends to further safeguards the copyright holder’s claim to an appropriate reward for the use of his or her work when making it accessible to the public on the internet. The decision is also a reminder that DRM systems are still relevant – and may, going forward, become more relevant as the primary means to protect paid content on the internet.

The court’s ruling is yet another puzzle piece in the mosaic of case law on hyperlinking, which is not always intuitive to understand. Below we include a chart to illustrate (in a simplified way) how hyperlinks are currently treated under EU copyright laws based on the CJEU’s case law.

[1] The technique of framing consists of dividing a website page into several frames and posting within one of them, by means of a clickable link or an embedded internet link (inline linking), an element coming from another site in order to hide from the users of that site the original environment to which that element belongs.

[2] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.