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European Court of Justice strengthens rights of copyright holders and content providers
On March 9, 2021, the European Court of Justice (“CJEU”) ruled that copyright holders (or corresponding licensees) may take or arrange for technical protective measures against framing in order to limit the availability of a protected work to the public (case no. C-392/19 - VG Bild-Kunst / Stiftung Preußischer Kulturbesitz). The embedding of such a protected work in the website of a third party by framing constitutes a communication to the public (Section 19a UrhG). Such a communication to the public is subject to the consent of the copyright holder, if the protected work is protected against framing via technical protective measures.
The CJEU thus strengthens the rights of authors and licensees regarding content published via the Internet (hereinafter: content providers).
Previous case law - BestWater and Svensson
In order to estimate the impact of this decision, we want to take a brief look back to 2014.
In 2014, the CJEU ruled that embedding a protected work (“content”) that is publicly available on a website into the website of a third party using the framing technique and without circumventing technical protective measures is not a new communication to the public.
If the content in question is neither reproduced for a new audience nor according to a special technical procedure, the audience of the original publication does not change. A video that was once published on YouTube is therefore not republished on the website of a third party within the meaning of Section 19a UrhG if this third party embeds the corresponding YouTube video by framing (without circumventing technical protective measures). The background of this decision has been that YouTube does not apply any technical protective measures against framing, according to the CJEU in its decision of October 21, 2014 (case no C-348/13-BestWater International GmbH/Michael Mebes et al.).
Accordingly, the CJEU had already ruled in the decision of February 13, 2014 that framing a text, also without circumventing technical protective measures, does not constitute a new communication to the public within the meaning of Section 19a UrhG (case no C-466/12-Nils Svensson, Sten Sjörgren, Madelaine Sahlman, Pia Gadd/Retriever Sverige AB).
These CJEU decisions caused a stir at the time, because content providers had to and still have to live with a kind of exhaustion regarding their right of making works available to public (just to avoid any misunderstanding: There is no exhaustion regarding such rights, Art. 3 (3) Information Society Directive, directive 2001/29/EC). According to the current decision, a content provider has to accept such a broad scope regarding the relevant public (“all internet users”), if they do not effectively protect their content against framing.
Weighing of Interests
Since framing allows the respective content from a third party's website to be integrated into one's own website, the interests can obviously run counter to one another. The original website does not have to be accessed directly in order to experience the content on the website of a third party. This can have an impact on any advertising revenues and the range measurements regarding the original website.
Impact of the current CJEU decision
The CJEU confirms the principle that framing constitutes a communication to the public.
The CJEU then notes that the above-mentioned case law from 2014 is based on a different set of facts. There, access to the content on the original website was not made dependent on any restrictive (protective) technical measure. In the absence of technical protective measures, the CJEU had assumed that the content provider had made its work freely accessible to the public or had permitted such accessibility and that it had considered all Internet users to be the public from the outset. Thus, the content provider had also consented to the reproduction by third parties.
If, for example, content on a website on which the original publication took place is no longer publicly accessible or if the content is now only accessible to a limited audience of this website, this content is not freely accessible to all Internet users (any more).
The CJEU clarifies this case law from 2014 in the current decision. The CJEU states that it does not automatically follow from the earlier decisions that the placing of hyperlinks to protected works on a website, which have been made freely accessible on another website without the permission of the copyright holder, does not in principle fall under the term “communication to the public”.
Rather, the previous case law confirms that, in principle, any communication of a work to the public must be permitted by the copyright holder. This also applies if a third party embeds a work, protected against framing, which has been made accessible on a certain website, with the permission of the copyright holder. The same applies if the copyright holder has imposed technical protective measures on its licensees to limit the audience for its works to users of the original website alone.
At the same time, the CJEU specifies that the copyright holder is not permitted to restrict his permission in any other way than by effective technical protective measures. This restriction is necessary to ensure legal certainty and the proper functioning of the Internet.
Finally, the CJEU clarifies that the permission of the right holder who has introduced restrictive protective measures against framing of his works cannot refer to “all Internet users”. This would lead to an exhaustion of his right and, in particular, would also deprive the right holder of the possibility to demand an appropriate license for the use of the relevant work.
The CJEU uses clear language to justify its decision. Content providers should definitely introduce technical protection measures (even retroactively) if users can experience content on their own website. Protection by means of organizational protective measures of some kind, such as a notice that framing is not permitted, is in no way sufficient to meet the CJEU's requirements regarding protective measures against framing.
The CJEU does not state how this judgement regarding copyright law affects corresponding questions under unfair competition law regarding examples of unfair practices to protect competitors (Section 4 no. 3 German Act against Unfair Competition). However, one can assume an act of unfair competition if technical protective measures are unlawfully circumvented.