2016 - News - Detail Page - Stiftung Preußischer Kulturbesitz

Yesterday morning, the European Court of Justice (ECJ) issued its judgement in preliminary ruling proceedings (case no.: C-392/19), which were initiated in 2019 by the Federal Court of Justice in Karlsruhe (case no.: I ZR 113/18). In the case, the Prussian Cultural Heritage Foundation, as the organisation responsible for the German Digital Library (DDB), and the collecting society Bild-Kunst (VG Bild-Kunst) are in dispute over the question of whether VG Bild-Kunst may make the licensing of image rights for publication on the DDB's online portal dependent on the DDB implementing technical measures that prevent third parties from embedding the displayed preview images in their own websites via a link. The introduction of such measures would naturally entail considerable costs. There are also many authors and especially artists who want to be found online and are therefore in favour of linking their works. Consequently, the DDB defended itself against what it considered to be an unreasonable demand by VG Bild-Kunst.

• Legal certainty as the primary goal

In order to create legal certainty at this point, both sides agreed to have the copyright issues clarified in court. This was in 2016, and the proceedings have since reached the European stage in Luxembourg via the Berlin Regional Court, the Court of Appeal and the Federal Court of Justice. This alone shows the importance of the relevant legal issues not only for the specific case, but far beyond. It is a matter of fundamental considerations as to whether and, if so, how access to copyright-protected content is granted on the internet and what role technical protection measures play in this.
The special feature of the original case is that it is not about technical access blocks in the sense of a pay wall, for example, but about such technical measures that are intended to prevent a third party - without copying the preview image - from integrating it into its own website via an embedded link (frame inline link). This happens regularly without the viewer realising that the image is not an integral part of the website being viewed, but is added via a link. Whether such hyperlinks are to be treated differently from a "classic" clickable link has not yet been decided by the highest court.

• Decision of the ECJ

In the past, the ECJ has emphasised the importance of hyperlinks for the functioning of the internet as well as for freedom of expression and information on the internet in various decisions. At the same time, however, the judges have also emphasised that the European Union strives for a high level of protection in the area of intellectual property. Copyright should therefore enjoy effective protection and authors should receive appropriate compensation for the use of their works. To this end, the law also provides for technical protection measures in certain constellations. However, to date, the focus has always been on technical protection against access as such, not on regulating the "how" of access.
In yesterday's judgement, the ECJ now states that
"Article 3(1) of Directive 2001/29 must be interpreted as meaning that the embedding in the website of a third party, by means of the framing technique, of works protected by copyright and made freely accessible to the public on another website with the permission of the copyright holder constitutes a communication to the public within the meaning of that provision if it is made by circumventing protective measures against framing taken or caused to be taken by the rightholder."
The judges thus recognise that linking to copyrighted works can constitute a communication to the public under certain circumstances. In particular, this is the case if the linking takes place by circumventing technical protection measures implemented by the rights holder that are intended to prevent framing or inline linking by third parties. The individual rights holder can now oppose linking despite technical blocking on the basis of their copyright, as the ECJ considers this to be an unauthorised act of use by the third party.

The implementation of technical protection measures is understood as an expression of the author's will. They authorise the public reproduction of their works on the internet "subject to reservation". This means that the public may only view these works in the context of a specific page. The ECJ even goes one step further here. In order to ensure legal certainty and the proper functioning of the internet, the copyright holder should not be permitted to restrict his authorisation by any means other than effective technological measures within the meaning of Art. 6 (1) and (3) of Directive 2001/29.

• What happens next?

The proceedings will now continue before the Federal Court of Justice in Karlsruhe. The ECJ has answered a question of interpretation regarding the understanding of European copyright law. It will be up to the German courts to clarify the relevant questions of fact in the light of this interpretation. However, it is already apparent that the judges in Luxembourg have focussed strongly on the individual author. If they so wish, they should be able to authorise public reproduction "subject to reservations", namely on the premise that framing or inline linking by third parties is technically prevented.

Strengthening the rights of the individual author in this way is fully in line with the DDB's understanding. As a cultural institution and mediator between creative artists, cultural and knowledge institutions and society, we regard copyright as a valuable asset. At no point in the dispute with VG Bild-Kunst was this in question. The DDB is also of the opinion that authors or their representatives are entitled to commercialise high-resolution images in particular. The DDB is primarily concerned with ensuring that artistic works are publicised.

In this respect, the DDB has also offered an increased licence fee in order to price in any framing by third parties. However, we doubt to what extent technical protection measures should be the preferred means of choice in the context of providing digital access to culture. Rather, it will be crucial to create a general understanding in society that not everything that can be found online is also freely available.
The website of the German Digital Library sees itself as a "digital showcase" of art and culture for everyone and therefore also as support for cultural institutions, cultural professionals and creative people. It is therefore a matter of course for the DDB to remove thumbnails from its portal when requested to do so by rights holders. In this respect, the DDB is already complying with the judgement of the ECJ. However, the DDB and its digital services have been expressly welcomed by a large number of authors. It will therefore be necessary to differentiate between the individual rights holder, who wants their works to be made available to the public "subject to reservations", and a collecting society that demands the blanket implementation of technical protection measures for all of the authors and artists it represents. In the opinion of the DDB, opinion among authors is not as unanimous as this. However, the Federal Court of Justice in Karlsruhe must first decide on this.

The Prussian Cultural Heritage Foundation, as the sponsor of the German Digital Library, is being represented in the proceedings by Dr Nils Rauer, MJI (Pinsent Masons, Frankfurt).

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