CJEU asked to rule on German copyright 'framing' case

The Court of Justice of the EU (CJEU) has been asked by a court in Germany to clarify rights around 'framing' in a case that is likely to further develop existing case law on the issue of hyperlinking. A ruling is not expected until spring 2020 at the earliest.

While hyperlinking typically leads internet users to visit content on third party websites, 'framing' involves displaying content behind a link within a window embedded on the website that the user accessing the content is currently on when the user clicks on the link. Some rights holders do not want their content to be framed and thereby embedded in third parties’ websites, but others embrace framing as a way to obtain the broadest distribution of their work and enhance their reputation.

The CJEU has been asked whether online content providers can be said to communicate copyrighted works to the public if they embed content on other freely accessible websites without applying protective measures that rights holders insist are put in place to prevent the framing of that content by others.

The referral to the CJEU has been made by the German Federal Supreme Court following a legal battle between collecting society VG Bild-Kunst and the German Digital Library, Deutsche Digitale Bibliothek (DDB).

DDB has 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, but the collecting society has insisted that such technical measures be applied by DBB via their contract.

If VG Bild-Kunst's arguments are successful, right holders would be entitled to demand technical measures being implemented on each and any website featuring copyright works, Frankfurt-based copyright law expert Dr. Nils Rauer of Pinsent Masons said. Pinsent Masons has advised DDB on the case.

"In a number of previous proceedings, the CJEU has emphasised the fundamental importance of free linking of content on the internet," Rauer said. "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 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."