ECJ: Embedding content as communication to the public

Apr 21, 2021 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) had to decide on the interpretation of Art 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society in the context of a German reference for a preliminary ruling.

The basis of this reference for a preliminary ruling is a dispute between a society for the collective management of copyright in works of visual art in Germany (VG Bild-Kunst) and a German foundation for the preservation of cultural heritage (Stiftung zur Erhaltung des kulturellen Erbes, SPK).

VG Bild-Kunst made the conclusion of a license agreement on the use of the works in the form of thumbnails dependent on a contractual provision according to which SPK as the licensee undertakes to apply effective technical measures against framing of the works and subject-matter of the agreement when using them. The SPK refused to do so.

Consequently, the ECJ had to examine whether framing itself is to be regarded as communication to the public according to Art 3 (1) Directive 2001/29/EC. In this case, the SPK would be obliged to implement the measures mentioned.

According to the case law of the ECJ, framing consists of dividing the internet page of a website into several frames and displaying a component of another website in one of these frames by means of clickable links or an embedded internet link so that the original environment of this component remains hidden from the users.

Ultimately, the ECJ ruled that embedding in a third party's website, by way of framing technology, works protected by copyright and made available to the public on another website with the permission of the copyright holder constitutes communication to the public within the meaning of Art 3(1) of Directive 2001/29/EC.

ECJ, C-392/19 (09.03.2021)