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In recent years, the classification of links as acts of communication to the public has been at the forefront of the academic and judicial debate. The Court of Justice of the European Union (CJEU) has ruled on this issue on several occasions—in particular, in its landmark judgments in Svensson C-466/12 and GS Media C-160/15 (discussed in this blog here and here).

On March 9, the CJEU issued a new judgment (Case C-392/19,SPK v VG Bild-Kunst) on the scope of the right of communication to the public. The facts of the case are as follows: a German foundation, SPK, is the operator of a digital library that stores thumbnails of several works. SPK requested a license from VG Bild-Kunst (a visual arts copyright collecting society in Germany) for the use of its catalogue of works. The collective management organization refused unless SPK committed to implementing effective technological measures to prevent third-party framing (i.e., “framed” links displaying the images as if they were part of its own website). Under German law transposing Directive 2014/26, collecting societies must grant licenses on reasonable terms to any requesting person. SPK considered VG Bild-Kunst’s terms unreasonable, so it brought an action to ask that a license be granted without requiring the implementation of such technological measures.

The key underlying issue is whether third-party framed links circumventing protection measures are acts of communication to the public and thus require the authorization of the right holder. In the affirmative, right holders will be entitled to require licensees—through the collecting society—to implement such measures. Therefore, they will be able to authorize or deny third parties’ further acts of communication by means of framed links.

The German Federal Court of Justice (Bundesgerichtshof) considers that any links that circumvent existing technological protection measures constitute a communication to a new public. However, the Bundesgerichtshof is aware of CJEU case law on the need to take into account the freedoms of expression and information, as well as the importance of links for the proper functioning of the internet and the exchange of opinions and information. Therefore, it is uncertain whether such unauthorized framed links should be considered acts of communication to the public.

In accordance with settled case law, the CJEU recalls that for there to be a subsequent communication to the public, it must be addressed to a new public, i.e., to a public that was not already taken into account by the copyright holder when he or she authorized the initial communication (or it must be made by specific technical means different from those previously used, which was not the case). In the absence of restrictions, it would be understood that by authorizing the (licensee’s) initial communication, the right holder had already taken into account all potential public (all internet users). Therefore, any subsequent links would not constitute communication to the public, since they would not reach a “new” public (according to Svensson and other CJEU case law). On the other hand, the CJEU notes that, “where the copyright holder has adopted, or obliged licensees to employ, measures to restrict framing so as to limit access to his or her work from websites other than that of his or her licensees, the initial act of making available on the original website and the secondary act of making available, by means of the technique of framing, constitute different communications to the public, and each such act must, consequently, be authorized by the rights holders concerned” (para. 43).

The CJEU acknowledges the importance of links for the proper functioning of the internet and thus for the freedom of expression and information. However, it warns: the view that third-party links circumventing protection measures do not constitute an act of communication to the public “would amount to creating a rule on exhaustion of the right to communication” contrary to article 3 of Directive 2001/29. Such a rule would prevent right holders from claiming adequate compensation for the use of their work—which goes against the purpose of the Directive. Therefore, concluding that there is no communication to the public would violate the fair balance between the interests and rights at stake, including the right to freedom of expression and information.

In sum, the CJEU agrees with the collecting society that requiring the licensee to take anti-framing measures is justified to protect the right holder’s exclusive right.

However, the CJEU issues a strong warning that for reasons of legal certainty, “the copyright holder cannot be allowed to limit his or her consent by means other than effective technological measures” within the meaning of article 6(1) and (3) of the Directive. Otherwise, “it might prove difficult, particularly for individual users, to ascertain whether that right holder intended to oppose the framing of his or her works,” especially when that work is subject to sub-licenses.

Authors: Josu Andoni Eguiluz, Ane Alonso y Miquel Peguera

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