Embedding or linking? AG considers when authorisation will be required

In a recent Opinion regarding the law on "communication to the public" (VG Bild-Kunst v Stiftung Preußischer Kulturbesitz, Case C‑392/19 and also see the Press Release), Advocate General Szpunar has advised the CJEU to rule that the embedding in a webpage of works from other websites by means of automatic inline linking requires the authorisation of the copyright owner. However, if the embedding uses the framing technique and the rightsholder gave consent to the work initially being made available, then no further authorisation is required.

Facts

Stiftung Preußischer Kulturbesitz ("SPK") operates the Deutsche Digitale Bibliothek ("DDB"), which is a digital library for culture and knowledge in Germany. Verwertungsgesellschaft Bild-Kunst ("VG Bild-Kunst") is a copyright collecting society for visual arts in Germany.

VG Bild-Kunst sought to make it a condition of a licence to SPK that they apply technological measures against framing by third parties of the thumbnails of protected works from the DDB website. SPK applied to the court for a declaration that the licence should be made without this condition.

The German court referred this matter to the CJEU and asked whether the acts in question would be a "communication to the public" under Article 3 of the Directive 2001/29 and therefore an act of copyright infringement in the absence of the consent of the rightsholder (or the application or one of the exceptions to copyright infringement).

Also of relevance was Article 6 of Directive 2001/29, under which Member States are required to ensure legal protection against the circumvention of technical protection measures.

Opinion

AG Szpunar started his Opinion (after an initial comparison between the internet and hyperspace in Star Wars….) by setting out a helpful summary of the different means of showing or referring to third party content online:

1. Linking – where the URL of another page is set out in text and if clicked, takes the user to the home page or a 'deep' link on another site;

2. Inline (or 'automatic') linking – where specific HTML instructions are used to seamlessly embed an image or resource from another website (in a manner determined by the author of a new website) without the need to click on the link to display the content so it becomes an integral part of the new third party website; and

3. Framing – where the screen is divided and each part can independently display a different webpage or resource (which the AG considered an obsolete technique).

In light of the different technical position for each of the above situations, AG Szpunar proposed that the court rule that:

1. Embedding in a webpage of freely available works from other websites by means of clickable links using the framing technique does not require the copyright holder's authorisation; but

2. Embedding in a webpage by automatic links (inline linking, where the works such as graphics or audio-visual files are displayed automatically when the webpage is viewed without any further act by the user), does require further authorisation of the copyright holder.

The AG's starting point is that the posting of a hyperlink is a communication to the public. However, the rightsholder has consented to the communication to the public of the initial website, whether that public access the website or a part of it by directly accessing the site or by clicking a link on a third party website (regardless of whether they click a hyperlink or click on framed content). This is only the case where the work is freely accessible on the initial website and the link does not circumvent any restriction on accessing the work.

On the other hand, where the embedded content displays automatically and it appears to be an integral part of the new website, the AG considered this "tantamount to reproducing it and independently making it available to the public". The user no longer sees any connection with the initial website so is not the "public" to which the publication on the initial website was communicated. The rightsholder has only consented to the communication to the public of the initial website rather than the internet as a whole. The user is therefore a 'new public' and this constitutes a new communication, to which the rightsholder did not consent.  Furthermore, the automatic link is transmitted to the user by the HTML code on the new site and this is a new act of communication to that on the initial website.

The AG considered that drawing the line here is the best way of ensuring a fair balance between the interests of copyright holders and the interests of users.

Following on from this, the AG then proposed that for the first scenario set out above, technological measures that restrict framing are not eligible for legal protection under Directive 2001/29. However, under scenario 2, authorisation is required and therefore technological protection measures that restrict inline linking are eligible for legal protection. This is because Article 6 only covers acts where the consent of the copyright holder is required.

Comment

There has been a significant amount of judicial consideration regarding the technical operation of the internet and whether linking or embedding constitutes communications to the public and therefore copyright infringement in the absence of specific authorisation from the rightsholder from the cases of Svensson and Bestwater to GS Media. The AG helpfully summarised and analysed the position in these cases. He is fairly critical of these well-established decisions and considers the approach "outdated" and in some respects based on a "legal fiction" surrounding the operation of the internet.

This Opinion drills down even further into the different technical means of linking to third party websites and invites a new reading of the existing case law. It shows the challenges in interpreting broad copyright laws to respond to the practical, technical operation of the internet. Although the approach suggested would strengthen the protection for rightsholders, it may not be practical to enforce this approach and challenges the way the internet currently operates. It will be interesting to see if the Court of Justice follows this Opinion.