The Prussian Cultural Heritage Foundation is responsible for the so-called German Digital Library. This digital platform can be used to access copyright-protected content, mostly works of art stored in high resolution. However, the German Digital Library itself only stores preview images of the corresponding works.

Collecting society insists on measures against framing

The collecting society Bild-Kunst exercises the copyright rights of the authors of the respective works. The sponsoring foundation negotiated the conclusion of a contract with this collecting society, which grants it the right to use the respective works in the form of the preview images.

However, the collecting society made the conclusion of such a usage agreement 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.

Foundation sought judicial determination of lack of obligation

However, the plaintiff rejected such a contractual provision during the negotiations and filed an action before the Berlin Regional Court for a declaratory judgment that the collecting society is obliged to conclude a license agreement without this provision.

The Regional Court initially dismissed the action as inadmissible (judgment of July 25, 2017, Ref.: 15 O 251/16). On appeal by the plaintiff, the Court of Appeal found that the defendant was obliged to conclude a user agreement without this clause (judgment of June 18, 2018, case reference: 24 U 146/17). The legal dispute then ended up before the Federal Court of Justice. After the ECJ was called upon to interpret EU law in the meantime (judgment of March 9, 2021, case reference: C-392/19), the BGH was now called upon (judgment of September 9, 2021, case reference: I ZR 113/18).

BGH: Framing violates the right of communication to the public

The court first stated that the collecting society is obliged to grant rights of use to anyone upon request on reasonable terms on the basis of the rights it administers. However, it is also obliged to safeguard and enforce the rights of its affiliated authors.

When weighing up the interests of the parties involved, the Karlsruhe judges found that it was wrongly assumed that the rights of the authors would not be affected if the preview images used by the plaintiff became the subject of framing. This is because the Court of Justice of the European Union ruled in the preliminary ruling proceedings that embedding a work available on a freely accessible website with the consent of the rightholder in the website of a third party constitutes a communication to the public of the work if it is done by circumventing protective measures taken or arranged by the rightholder. Framing can therefore infringe the right of communication to the public to which the authors are entitled.

The Federal Court of Justice therefore set aside the appeal judgment and referred the case back to the Court of Appeal for a new hearing and decision.