Facts, procedure and preliminary question
The case, now before the Court of Justice, arises from a dispute between the German foundation Stiftung Preußischer Kulturbesitz (“SPK”), operator of the Deutsche Digital Bibliothek (DDB), and the visual arts collecting rights society “VG Bild-Kunst”. The latter, in order to license the use of its members’ works, intended to impose a contractual undertaking on SPK to introduce technological protection measures against third party “framing” of the licensed works by SPK.
SPK therefore initiated legal proceedings aimed at obtaining a declaration that such an undertaking would be unreasonable from the copyright point of view and that VG Bild-Kunst would be obliged to grant the licence at issue without making it conditional on the adoption of such technological measures. This action was brought before the German Supreme Court, which referred to the CJEU the question whether the incorporation by “framing” of a work available on a website freely accessible with the right holder’s consent on third-party websites constituted a communication to the public of the work within the meaning of Article 3, paragraph 1 of Directive 2001/29 in the event of circumvention of the protective measures against “framing” which the right holder has adopted or has had adopted.

Hyperlinks and communication to the public
The Advocate General highlights the question whether the work in issue appears on the incorporating website as an “integral part” or whether there is actually a redirection to an external site. The analysis carried out by the Advocate General focuses on whether the use of a hyperlink in general, made by a third party website to a work belonging to another party, constitutes (or does not constitute) a communication to the public within the meaning of Article 3, paragraph 1 of Directive 2001/29, i.e. whether the inclusion of such a link falls within the exclusive right of the copyright holder to that work. According to a critical analysis of the case law of the Court, the use of hyperlinks would, to all intents and purposes, constitute an “act of communication” but not necessarily an “act of communication to the public”.
It should be assessed whether this is a public to which the work had already been made available by the right holder or a “new public”. In the latter case, the hypertext link (if not authorised by the rightholder) would constitute an infringement of the author’s exclusive rights, especially in cases where the hypertext link would make it possible to circumvent the technological measures restricting access to the work (see Case C-466/12, judgment of February 13, 2014, Svensson case). This ruling was confirmed in later case-law in the event of links implemented through “framing”, adding that the purpose of profit and the knowledge (or knowability) of the circumvention represented indexes to determine the unlawfulness of the act of communication (see Case C-348/13, order of October 21, 2014, BestWater case and Case C-160/15, judgment of September 8, 2016, GS Media case).
According to the Advocate General, from the elaboration of the most recent case-law of the Court it appears that by authorising the making available to the public of his work on a freely accessible internet page, the copyright holder takes into consideration all the public who theoretically have access to that internet page. Thus, the public which accesses it via hyperlinks is also included. Therefore, such links, while constituting acts of communication, as they give direct access to the work, are covered by the copyright holder’s authorisation issued at the time of the first making available. In this case, the “new public” element does not apply.

Inline linking and framing
In case of inline linking, as defined by the Advocate General, the work is automatically incorporated into the third party’s internet page, and appears without the user being required to click on the link at issue, potentially changing the audience originally expected by the owner of the original work made available to the public. Such automatism may not exist in framing and the user (perhaps the more experienced one) would in any case be aware of being redirected to a different site from the one originally searched for. The Advocate General reiterates in his explanatory statement that the technical difference between inline linking and framing is in any case not clear enough to serve as a criterion: instead, the question of whether or not the user’s action is necessary to view the content is important.

Automatic visualization and action carried out by the user
By pointing out the difference between automatism, on the one hand, and the action carried out by the user, on the other, in the traditional terminology of the Court which distinguishes between “new public” and the public to which the rights holder has intended to communicate his work, the Advocate General concludes as follows: the public which does not realise or cannot realise an external connection should be considered as “new public”. Otherwise, in the case of an action carried out by the user, as may also occur in the case of framing, the public would be deemed to be the original addressee of the authorised act of communication.

Protection measures
It remains to be clarified whether the use of framing within a site that requires user action to view the protected work should not also be considered “communication to the public” if framing protection measures are circumvented. It could be argued that even in this case there would be a “new public” not taken into account by the rights holder at the time of the first communication. However, rejecting such an approach, the Advocate General points out that such a circumstance would introduce a dangerous rule since the application of protective measures would become a prerequisite for the legal protection granted by copyright.

Alessandro Bura