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German Federal Supreme Court seeks clarification on how to deal with framing

On 25 April 2019, the German Federal Supreme Court (BGH) referred a question of far-reaching impact to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

The query relates to a model lawsuit currently pending before the German court with the collecting society VG Bild-Kunst and the German Digital Library, Deutsche Digitale Bibliothek – DDB, being parties to it.

In essence, the core question is whether the linking of copyright protected content, by way of framing technology, may constitute a communication to the public within the meaning of Article 3 of the InfoSoc Directive 2001/29. If this were the case, right holders would be entitled to demand technical measures being implemented on each and any website featuring copyright works.

Pinsent Masons advised DDB led by Frankfurt-based Advanced Manufacturing & Technol

ogy partner, Dr. Nils Rauer.

The dispute began in the Regional Court of Berlin (Landgericht Berlin). There, DDB tried to enforce its right to be granted a license by VG Bild-Kunst without being obliged to implement appropriate technical measures preventing third-party framing.

However, VG Bild-Kunst insisted on such contractual obligation. Eventually, the parties agreed to have the issue clarified in court. Whilst the court of

first instance refused to hand down a decision on the merits of the case, DDB was able to assert its arguments before the court of appeal (Kammergericht Berlin).

Upon VG BILD-Kunst's secondary appeal, the matter went up to the German Federal Supreme Court. The oral hearing before the I. Civil Senate took place on 21 February 2019. The decision to refer the core question of the lawsuit to the CJEU came ultimately through on 25 April 2019.

This referral allows for adequate clarification at European level and thus for sufficient legal certainty throughout the entire EU.

The question referred to the Luxembourg judges:

"Does the embedding, by means of framing, of a work available on a freely accessible internet website with the consent of the right holder into the internet website of a third party constitute a communication to the public of the work within the meaning of Article 3(1) of Directive 2001/29/EC if it is carried out by circumventing protective measures against framing taken or initiated by the right holder?"

Commenting on the case, Dr. Nils Rauer said: "The answer to this question has far-reaching significance beyond the German model lawsuit at issue. In a number of previous proceedings, the CJEU has emphasised the fundamental importance of free linking of content on the Internet.  

"In consideration of this, the CJEU has placed framing, as one of the possible forms of linking, on equal terms with 'normal' hyperlinks, even though the Internet user may hardly recognise and distinguish framed content from content being an integral part of the website he or she is on. However, according to the case law of the CJEU, such kind of recognisability is not what counts from a legal point of view. There are therefore resonating arguments in favour of the DDB's position, i.e. the rejection of a general obligation to implement framing protection."

The proceedings before the CJEU will take its formal starting point once the German Federal Supreme Court will have handed down the full-text decision holding an explanation why the judges deem it necessary to obtain the CJEU's preliminary ruling.

This decision will also feature an indication as to how the German judges would answer the question at this stage. In the further course of the proceedings, the parties as well as the member states and institutions of the EU will be given the opportunity to render statements, probably followed by an oral hearing before the CJEU in Luxembourg in early 2020.

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