ECJ ruling – embedding digital media through framing in the network remains allowed
The embedding of digital media as a clickable link on Internet pages remains permitted after a ruling by the European Court of Justice. However, the highest court restricted the possibility of so-called framing with its judgment on Tuesday. If the rights holder has taken protective measures against embedding, it needs his permission to do so. Otherwise, the person is deprived of the opportunity to demand appropriate remuneration for the use of his works.
“The good news for the Internet is that hyperlinks, including those in the form of framing, are generally permitted as long as technical protective measures are not circumvented,” said Fabian Seip, lawyer and telecommunications expert at Hengeler Mueller. With framing, parts of a website – such as images or videos – are displayed as a clickable link in a frame on another website.
The background to Tuesday’s ruling is a license dispute between the German Digital Library (DDB) and the collecting society Bild-Kunst. The DDB, which belongs to the Prussian Cultural Heritage Foundation, shows preview images of works protected by copyright on its website, which can also be embedded on other websites. However, in order to conclude a licensing agreement, VG Bild-Kunst requires the DDB to take technical protective measures against the framing of the preview images. However, this does not consider this to be appropriate and sued.
DDB disappointed with decision
The German Federal Court of Justice finally appealed to the ECJ in the legal dispute and wanted to know, among other things, whether the framing was a public reproduction under EU law. The ECJ affirmed this in the event that protective measures of the rights holder are circumvented during framing. The rights holder did not consent to the publication of his works by third parties if he had taken such measures against framing. Rather, he wants to limit the audience in this case to the users of a certain website.
The German Digital Library was disappointed with the decision. “Of course we would have liked a different verdict,” said her lawyer Nils Rauer of the German press agency. However, he emphasized that the ECJ argues strongly from the perspective of the individual author. “VG Bild-Kunst claims, however, that it speaks on behalf of all authors it represents – although it does not have the mandate to demand protective measures on behalf of everyone.” Therefore, the dispute before the BGH continues as to whether the VG Bild-Kunst can actually speak for all of its members. Rauer is convinced: “Many rights holders still want to be found via search engines.”
Telecommunications expert Seip emphasized that the ECJ had also created clarity with regard to the protective measures. The rights holder must use or prescribe technical protective measures. “Mere verbal restrictions – for example through the general terms and conditions – are not enough.” However, payment barriers or similar measures to generate income are not necessary. “According to the judgment, the technical measures must be ‘effective’, i.e. offer a minimum level of protection against circumvention.” (apa / dpa)