Advocate General Maciej Szpunar proposes to the EU Court of Justice to distinguish between inline linking and clickable links using framing in the dispute between a collecting society and a digital library devoted to culture in Germany over a contractual provision (Case C-392/19).
In his Opinion delivered on Thursday 10 September, the Advocate General considers that only the incorporation of works from other websites into an internet page by means of inline linking requires the authorisation of the owner of the rights in those works. In these circumstances, the works are automatically displayed as soon as the web page is opened, without any additional action on the part of the user.
On the contrary, such authorisation is not required when incorporating works using clickable links using framing (a practice that consists of dividing the screen into several parts, each of which may present the content of another website), even when such incorporation circumvents technological protection measures against framing adopted or imposed by the rightholder.
The notion of “new public”
The argument put forward by Advocate General Szpunar is that, in the case of framing, the authorisation is already deemed to have been given by the rightholder when the work was first made available. According to this scenario, there can be no question of a new public, “because the public is always the same: the public of the website targeted by the link”, says Szpunar.
In the case of inline linking, on the other hand, the Advocate General notes that “there is, from both a technical and a functional point of view, an act of communication of those works to a public which was not taken into account by the copyright holder when the works were initially made available, namely the public of a website other than that on which that initial making available of the works took place”. Therefore, the authorisation of the rightholder is necessary.
In his recommendations on the interpretation of the Copyright Directive 2001/29, the Advocate General points out that there are, however, exceptions to this authorisation, in particular for cases of quotation, caricature, parody or pastiche. (Original version in French by Sophie Petitjean)