ADVOCATE GENERAL SZPUNAR’S OPINION: THE EMBEDDING IN A WEBPAGE OF WORKS FROM OTHER WEBSITES BY MEANS OF AUTOMATIC LINKS REQUIRES THE AUTHORISATION OF THE HOLDER OF THE RIGHTS IN THOSE WORKS

VG Bild-Kunst v Stiftung Preußischer Kulturbesitz           

14.09.2020

Advocate General’s Opinion in Case C-392/19, VG Bild-Kunst v Stiftung Preußischer Kulturbesitz, released on September 10, 2020.

Stiftung Preußischer Kulturbesitz operates the Deutsche Digitale Bibliothek, a digital library devoted to culture and knowledge, which networks German cultural and scientific institutions. The website of that library contains links to digitised content stored on the internet portals of participating institutions. As a ‘digital showcase’, the library itself stocks only thumbnails, that is to say smaller versions of the original images.

VG Bild-Kunst a copyright collecting society for the visual arts in Germany, makes the conclusion with Stiftung Preußischer Kulturbesitz of a licence agreement for the use of its catalogue of works in the form of thumbnails conditional on the inclusion of a provision whereby the licensee undertakes, when using the protected works and subject matter covered by the agreement, to apply effective technological measures against the framing by third parties of the thumbnails of the protected works or subject matter displayed on the Deutsche Digitale Bibliothek website.

Taking the view that such a contractual provision was unreasonable from the point of view of copyright, Stiftung Preußischer Kulturbesitz brought an action before the German courts seeking a declaration that VG Bild-Kunst was required to grant the licence in question without making that licence conditional on the implementation of those technological measures.

According to Advocate General Maciej Szpunar, the embedding in a webpage of works from other websites by means of clickable links using the framing technique does not require the copyright holder’s authorisation, since he or she is deemed to have given it when the work was initially made available, but the embedding of such works by means of automatic links (inline linking, the works being displayed automatically on the webpage viewed as soon as it is opened, without any further action on the part of the user), normally used to embed graphics and audiovisual files, requires the authorisation of the holder of the rights in the works.

You can find the press release text of the Opinion of Advocate General here.

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