Linking and copyright: one size fits all (for now)

Linking has always been controversial, as it sits at the intersection between copyright law and the reality and functioning of the internet.  Hyperlinks ‘web the Web’, and there is a tricky balance to be struck between the interests of copyright holders on the one hand, and the interests of copyright users on the other.  In the latest entry in the saga, the CJEU has delivered its decision VG Bild-Kunst v Stiftung Preußischer Kulturbesitz (Case C-392/19).  You can see our Lens post on AG Szpunar’s earlier Opinion, discussed below, here.

For those new to the controversy and facts of this case, Stiftung Preußischer Kulturbesitz (“SPK”) operates the Deutsche Digitale Bibliothek (“DDB”), a digital library which contains links to digitised content stored on the internet portals of participating cultural and scientific institutions.  Verwertungsgesellschaft Bild-Kunst ("VG Bild-Kunst"), a copyright collecting society for the visual arts in Germany, proposed a licence with SPK for the use of VG Bild-Kunst’s catalogue as thumbnails (smaller versions of the original images of the subject matter) on the DDB website.  Significantly, the licence contained provisions which required SPK to employ effective technological measures against the framing by third parties of the thumbnails.  SPK claims this is unnecessary and sought a declaration from the German courts that VG Bild-Kunst would be required to grant the licence without such provisions.

The question for the CJEU, following referral by the German Supreme Court, is whether the embedding of a work (which is available on a freely accessible webpage with the consent of the copyright holder) in the webpage of a third party by way of framing constitutes a communication to the public of that work within the meaning of Article 3(1) of the EU Copyright Directive, where it occurs through circumvention of protection measures against framing taken by the copyright holder.  If yes, the rights of the members of VG Bild-Kunst would be affected.  Therefore, VG Bild-Kunst could properly subject the grant of a licence to SPK to the condition that SPK undertake, in the licence agreement, to implement protective measures.

Significantly, the CJEU departed from AG Szpunar, who drew a distinction between clickable links and automatic links (or “inline links”) in his Opinion.  Instead, the CJEU concluded that a copyright owner can contractually restrict linking.  However, the only way to do this is to contractually require the adoption of technological measures.  For the CJEU this would ensure legal certainty and the proper functioning of the internet.  In doing so, the court focused on the actions of the copyright holder:

●  If the copyright holder gives explicit and unqualified authorisation for their work to be published, without using technological measures to restrict access to that work from other websites, they have in essence authorised the communication of that work to all internet users.

●  However, where the copyright holder has established or imposed from the outset restrictive measures linked to the publication of their work – as in the present case – a link would constitute a communication to the public within the meaning of Article 3(1).

Referring to the string of cases in which the CJEU has been asked to interpret the parameters of the copyright 'right of communication to the public of works' (starting with Svensson v Retriever Sverige AB (Case C-466/12) in 2014), the CJEU noted that the concept of ‘communication to the public’ requires an individualised assessment.  Interestingly, the court also highlighted that the principal objective of the EU Copyright Directive is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their work (including when a communication to the public takes place).  Further, that it is apparent from Article 3(3) of the EU Copyright Directive that authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications to the public of such works.

The first important message from the decision is the conditions upon which contractual restrictions to linking can be imposed.  The CJEU was clear that contractual restrictions are limited to the adoption of technological measures.  In the absence of such measures, it might prove difficult, particularly for individual users, to ascertain whether that copyright holder intended to oppose the framing of their works.  The second important message is that, for now, the CJEU has opted for the simplicity of a ‘one size fits all’ approach to linking as opposed to the differential treatment of links proposed by AG Szpunar.