On the 10th September 2020, the Advocate General Szpunar delivered its opinion in the Case C‑392/19, VG Bild-Kunst v Stiftung Preußischer Kulturbesitz, on three questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany).
The case concerns the concept of “communication to the public” according to art. 3(1) of the Directive 2001/29/EC and its applicability to the case of:
1) embedding in a webpage of copyright-protected works freely available to the public with the authorisation of the copyright holder on other websites, in such a way that those works are automatically displayed on that page as soon as it is opened;
2) embedding of a work – which has been made freely available to the public on a website with the consent of the rightholder – in the website of a third party by means of a clickable link using the framing technique.
According to art. 3(1), “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them“.
Moreover, the Federal Court of Justice asked the CJEU:
3) wether technological protection measures against the embedding in a webpage of copyright-protected works freely available to the public with the authorisation of the copyright holder on other websites – where those works are embedded in such a way that they are automatically displayed on that webpage as soon as it is opened, without any further action on the part of the user – constitute effective protection measures within the meaning of Article 6 of Directive 2001/29.
The Advocate General concluded that:
- Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the embedding in a webpage of copyright-protected works freely available to the public with the authorisation of the copyright holder on other websites, in such a way that those works are automatically displayed on that page as soon as it is opened, without any further action on the part of the user, constitutes a communication to the public within the meaning of that provision;
- That article must be interpreted as meaning that the embedding of a work – which has been made freely available to the public on a website with the consent of the rightholder – in the website of a third party by means of a clickable link using the framing technique does not constitute a communication to the public within the meaning of that provision, where that embedding circumvents protection measures against framing taken or imposed by the copyright holder;
- Technological protection measures against the embedding in a webpage of copyright-protected works freely available to the public with the authorisation of the copyright holder on other websites, where those works are embedded in such a way that they are automatically displayed on that webpage as soon as it is opened, without any further action on the part of the user, constitute effective protection measures within the meaning of Article 6 of Directive 2001/29.
The whole opinion of the Advocate General Szpunar can be read here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=230872&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1949569#Footnote1
Read the directive here: Relevant Legislative Instruments, Reforms and Proposals
