Where the copyright owner imposes restrictive measures against framing, the incorporation of a protected work into a third party’s web page by this technique must be authorised by the right holder, the Court of Justice of the European Union ruled on Tuesday 9 March (Case C-392/19) (see EUROPE 12557/30).
A dispute has arisen between the German company VG Bild-Kunst, a collective copyright management company in the field of visual arts, and the German foundation Stiftung Preußischer Kulturbesitz (SPK), which operates a digital library networking German cultural and scientific institutions. VG Bild-Kunst makes the conclusion of a licence agreement with SPK for the use of its catalogue of works in the form of thumbnail images subject to the inclusion of a provision to the effect that SPK will, when using the works referred to in the agreement, apply effective technical measures to prevent third parties from framing the thumbnail images of these works displayed on the website of the Deutsche Digitale Bibliothek.
SPK considers that this clause is abusive with regard to the rules governing copyright and neighbouring rights.
The EU Court of Justice has ruled that framing constitutes an act of communication to the public in so far as it has the effect of making the displayed element available to all potential users of a website.
According to the European judge, when the copyright owner has adopted or imposed restrictive measures against framing, the incorporation of a work into a third party’s Internet page by this technique effectively constitutes “making that work available to a new public” within the meaning of the Directive (2001/29) on copyright and neighbouring rights. Such communication to the public must therefore be authorised by the right holders concerned.
See the judgment of the Court: http://bit.ly/3vaiUYD (Original version in French by Mathieu Bion)