1. Introduction
On March 9, 2021, the CJEU delivered its judgement in the case.
The dispute that followed resulted in a question being referred to the CJEU, as to whether embedding a work (which is otherwise available on a freely accessible website with the consent of the rightsholder) in the website of a third party, by way of framing, constitutes communication to the public of that work within the meaning of Article 3 paragraph (1) of the Directive 2001/29/EC, where embedding occurs through circumvention of the protection measures taken or instituted by the rightsholder.
2. The reasoning of the CJEU
· while with regards to the type of used hyperlinks (clickable versus non-clickable), Advocate General Maciej Szpunar holds that they should be viewed differently, the CJEU decided not to depart from its traditional interpretation that all types of hyperlinks are to be treated in the same manner;
The Court has firstly recalled that in the main proceedings the parties did not dispute the fact that publishing thumbnails as envisaged by SPK, from works protected by copyright belonging to the VG Bild-Kunst catalogue, constituted an act of communication to the public within the meaning of Article 3 (1) of Directive 2001/29 and was therefore subject to the authorization of rightsholders.
(i) any act by which a user gives, in full knowledge of the consequences of his behaviour, access to protected works is likely to constitute an act of communication;
(iii) the communication is considered to be made to a new public to the extent the latter is different than the one envisaged by the author when the initial authorisation was given; this is the case when the technology used is different from the initially approved technology.
At the same time, by reference to its previous jurisprudence, the CJEU has flagged out that posting content from another website by framing hyperlinking, when such framing conceals the source of the content, represents communication to the public. However, such communication would not require one to obtain a new authorisation from the rightsholder. This is since, in the CJEU’s view, the public (i.e., internet users) is not new and since the respective content had already been communicated through the same technology, i.e. the Internet.
Based on the above, the Court has conversely reasoned that, in a case where restrictive measures have been imposed by the rightsholder, the solution should differ. In this case, absent an intervention which would have circumvented the restrictive measures, only the users of the original website could have had access to the relevant content. In this respect the CJEU has noted that, in order to ensure legal certainty and the proper functioning of the Internet, “the copyright holder cannot be allowed to limit his or her consent by means other than effective technological measures”.
The Court has thus concluded that Article 3 paragraph (1) of 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 must be interpreted in the sense that incorporating, by the technique of framing, in a web page of a third party, works protected by copyright and made available to the public on another website with the authorization of the copyright holder, when this incorporation circumvents protective measures against framing adopted or imposed by this holder, constitute communication to the public.
Apart from certain divergent aspects, the CJEU decision is in line with the Opinion of Advocate General Szpunar. At the same time, by reinforcing the rights of copyright holders in the context of automatic linking, the decision shows the continued commitment of the European institutions to interpret the law as to offer authors a high level of protection. The decision will represent a very important benchmark with regards to the consent provided by a rightsholder in relation to hyperlinking. The aspects underlined by the Court with regards to consent will provide rightsholders and courts with a test to establish when framing of a website’s content is allowed or not.
This article contains general information and should not be considered as legal advice.
Authors - MPR Partners - Flavia Ștefura, Senior Associate & Cristina Crețu, Senior Privacy & Technology Consultant
[1] Available here: https://www.lexology.com/library/detail.aspx?g=6b570416-0a0a-4015-a2c8-9a627543eaec.
[2] Article 3 paragraph (1) provides that “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”