Copyright infringement through framing?

If a website operator has taken measures against the embedding of a work in a third party's website, the consent of the rights holder must be obtained for the framing of this content. This was decided by the ECJ.

The Prussian Cultural Heritage Foundation is responsible for the so-called German Digital Library. Via its homepage, it offers an online platform for culture and knowledge that links cultural and scientific institutions. Digitized, copyright-protected content can be accessed via the platform, mostly works of art stored in high resolution.

The German Digital Library itself only stores the thumbnails of the respective digitized works. However, users can use a search mask in the library’s database to search specifically for objects and information from the fields of culture and science. In addition, the content can be enlarged by clicking on it or using a magnifying glass function.

“Framing clause” as the starting point of the legal dispute

As part of contract negotiations, the Prussian Cultural Heritage Foundation demanded that VG Bild-Kunst conclude a contract granting it the right to use the respective works in the form of thumbnails.

However, the company made the conclusion of such a contract of use dependent on the foundation taking effective technical measures against so-called “framing”, i.e. against the embedding of the respective preview images on third-party websites. The Prussian Cultural Heritage Foundation considered such a clause to be inappropriate. It therefore sued to establish an obligation on the part of the collecting society to grant the license in question without making it dependent on measures to prevent framing.

Against this background, the Federal Court of Justice asked the ECJ to clarify the question of whether framing constitutes a communication to the public within the meaning of Directive 2001/29/EC. This would potentially allow the collecting society to oblige the Prussian Cultural Heritage Foundation to take appropriate measures.

ECJ: Framing can constitute an act of communication to the public if protective measures are circumvented

The ECJ ruled on this issue in its judgment of March 9, 2021 (Case C-392/19). According to this ruling, the embedding of works protected by copyright and made freely accessible to the public on another website with the permission of the copyright holder on a third party’s website constitutes a communication to the public if it is done in circumvention of appropriate protective measures taken or arranged by the rightholder.

In its reasoning, the Court first states that the communication of a work by means of framing does not, in principle, fulfill the requirement of a new public. It therefore does not constitute a “communication to the public” within the meaning of Directive 2001/29/EC. This is because framing is generally carried out using the same technical process that is already used for the communication to the public of the work.

However, the judges ruled that this could only apply if access to the works in question on the original website was not subject to any restrictions. In this case, the rights holder has allowed all internet users to publicly reproduce and access his works from the outset. If, on the other hand, the rightholder has taken or had restrictive measures taken in connection with the publication of his works from the outset, he has not consented to the free public reproduction of his works by third parties. Rather, he wanted to limit the public with access to his works to the users of a specific website.

Framing defeat for the Prussian Cultural Heritage Foundation

In summary, embedding a work in a third-party website by means of framing constitutes “making available to the public” if the copyright holder has taken restrictive measures against framing or has had such measures taken.

This unrestricted making available to the public generally requires the permission of the rights holder concerned. Otherwise, framing constitutes an infringement of copyright. Authors and rights holders should take this into account when drafting their licenses, as should licensees, who may have to implement such requirements technically.

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