It is a recurring theme which the law repeatedly struggles to keep up to speed with in the online landscape. Everyday online practices often keep the courts occupied for decades before some degree of certainty about their legal implications is achieved – and sometimes, this can take more than one decision at the highest level. A textbook example for this is framing.
Framing and its legal journey
Framing means embedding content in such a way that it appears as a website’s own content although technically it just redirects to a different website for accessing the content. A YouTube video embedded in a third party website is a typical example of framing. Framing has existed since the early days of the Internet, and the first court decisions on framing in Germany date back to over 20 years ago.
The main question from a copyright perspective is whether framing a protected work amounts to a communication to the public under Art. 3 of the InfoSoc-Directive (2001/29/EC), thus infringing the author’s copyright. Framing as a technique does not really fit the definition – it does not require a physical reproduction, and the content in question had already been communicated to the public, just on a different website.
Following a passionate debate and inconsistent case-law, the implications of framing under copyright law were referred to the CJEU for the first time in 2013. The German water filter company BestWater sued two agents of a competitor who embedded a video in their websites through framing which was originally published on BestWater’s website. The CJEU held that framing, in principle, is permitted. It only amounts to infringement if a) the content is communicated by technical means other than those used on the initial website, or b) if the content is communicated to a “new public” (order of 21 October 2014, C-348/13). Otherwise, there is no new communication, but rather a continuation of the prior communication. Since the video was already freely available for all internet users on BestWater’s website, the referring court eventually confirmed that no infringement occurred (Higher Regional Court of Munich, judgement of 25 August 2016, 6 U 1092/11).
However, some uncertainty remained as the CJEU also indicated in its judgement that the outcome may be different under certain circumstances, in particular where the work on the original website was made available not for all but only for a limited range of users.
From BestWater to Prussian palaces
It was this uncertainty that led to the case at hand, which is based on a set of facts that make all the difference: The Prussian Cultural Heritage Foundation (which administers Berlin’s state museums) operates a digital online library on which it presents numerous digitalised copyright protected photos as thumbnails. For these, it sought a license from the appropriate German collecting society (“VG Bild-Kunst”). VG Bild-Kunst, however, was only willing to grant this license under the condition that the Foundation implements technological protection measures against framing by third parties. The Foundation considered this unreasonable as it regarded framing to be lawful, and filed an action against the imposition of the requested condition.
The case made its way to the German Federal Court of Justice (BGH). The judges sympathised with the notion that, despite the CJEU’s BestWater decision, framing could lead to copyright infringement if the right holder wanted to limit the dissemination of his work to the particular audience of a specific website by imposing technological protection measures, and where these measures are circumvented by the framer. This exception had indeed been mentioned by the CJEU already, in its Svensson decision on hyperlinks (judgment of 13 February 2014, C-466/12, para 31). So while the BGH could have arguably put two and two together, and decided the case on its own, it opted to refer the case to the CJEU for additional clarity.
The CJEU’s decision
With its judgement of 9 March 2021 (C-392/19), the CJEU took this opportunity to provide further clarity on online framing of copyrighted content, and to distinguish the new case from BestWater. It held that a right owner, by adopting or imposing technological measures to restrict access from other websites than the one he has authorised, expresses its intention to limit the communication of the content to the users of the authorised website. Consequently, the users of other websites form a “new public”, and framing under circumvention of technological protection measures results in a separate communication of the content – and thus to copyright infringement.
All the while, the CJEU expressly acknowledged the importance of framing for the smooth functioning of the Internet, and highlighted that technological protection measures are the only way for right holders to limit their consent, as otherwise individual users would not be able to tell whether or not a right owner is opposed to framing of its content. This clarification finds support in the fact that technological protection measures are explicitly addressed by Art. 6 of the InfoSoc-Directive.
Notably, the Advocate General proposed a different solution in his Opinion, namely a distinction between different types of framing: Only embedded content that appears immediately without any further clicks (‘inline linking’) would lead to a new communication to the public, whereas content requiring additional activation would not. The CJEU chose not to follow this idea, and to draw the line instead by reference to the technological measures employed by the right holder.
Overall, the decision fits well with the CJEU’s earlier case-law. The distinction from BestWater is clear and convincing, at least from a practical point of view and by the balance it aims to achieve. The importance of providing right holders with the means to retain a degree of control over the content they publish online is evident, and that this must be done through technological means. It is also persuasive that framing techniques that include the circumvention of safety measures can amount to copyright infringement, since the persons engaging in such circumvention should be well aware that they are acting contrary to the right owner’s intentions.
Outlook
The CJEU’s decision is a clear warning shot to website owners who use framing techniques that circumvent or ignore technological barriers. Right owners have gained more clarity when challenging the use of their works through such framing.
The decision will also encourage right owners to implement technological safety measures against framing, in line with the CJEU’s guidance, whenever they want to safeguard specific content from re-use by third parties in a different website context. A potential side effect might be, however, that the increased use of such measures could make the legal use of framing more difficult, for instance for public domain content.
In the case between the Prussian Cultural Heritage Foundation and VG Bild-Kunst, the BGH now has the final say – we expect it to side with the latter. Following the CJEU’s guidance, imposing technological protection measures against framing is not just reasonable but also the only way for a right holder to retain control over content disseminated online. The Foundation will thus have to accept the imposition of this requirement in the terms of the license. Going forward, the CJEU’s ruling is sure to affect comparable license negotiations across the board.
Authored by Anthonia Ghalamkarizadeh and Florian Richter
