Opinion of the Advocate General of the CJEU – automatic links can constitute a communication to the public


Verwertungsgesellschaft Bild-Kunst (VG Bild-Kunst) is a copyright collecting society for the visual arts in Germany.  Stiftung Preußischer Kulturbesitz (SPK) operates the Deutsche Digitale Bibliothek (DDB), a digital culture and knowledge library, which networks German cultural and scientific institutions.

On an authorised basis, the DDB website contains thumbnail image links to digitised content stored on the internet portals of participating institutions.  When a user clicks on a search result, they are redirected to the page on DDB’s site for the object, which contains an enlarged version of the image.  When that image is clicked or the magnifying function is used, an enlarged version of the thumbnail is displayed in a lightbox.  A ‘Display object on original site’ button contains a direct link to the website of the institution providing the object, either by a simple link to its home page, or by a deep link to the page for the object.

VG Bild-Kunst licences its catalogue of thumbnail works to SPK with the condition that SPK applies effective technological measures against the framing by third-parties of the thumbnails of the protected works or subject matter displayed on the DDB website.  SPK’s position in the proceedings is that such a contractual restriction is unreasonable, and the licence should be granted without the requirement for technological measures.  The case referred to the CJEU for a preliminary ruling turned on whether the embedding of a work which is available, with the consent of the rightsholder, on a website like the DDB’s, in the website of a third-party by way of framing constitutes a communication to the public of that work within the meaning of Article 3(1) of Directive 2001/29/EC (the InfoSoc Directive), where it circumvents protection measures against framing taken by the rightsholder or imposed by them on a licensee.  If it does, the rights of the members of VG Bild-Kunst are affected allowing them to lawfully request that the obligation to implement technological measures against framing be included in the licence agreement with SPK.

What did the AG decide?

In an opinion by Advocate General Szpunar, the AG has sought to clarify the CJEU’s case law on linking by proposing an adaptive reading of it, in line with the CJEU’s more recent case law.  Drawing a distinction between ‘clickable’ links and ‘automatic’ links (automatic links – normally used to embed graphics and audio-visual files – being ones that automatically display the resource to which the link leads on the webpage containing that link, without the need for the user to take any action), the AG decided that where automatic links embedded in a web page lead to works protected by copyright, there is, from both a technical and a functional point of view, an act of communication of the work in question to a public, which was not taken into account by the copyright holder when the work was initially made available.  Since automatic linking requires the authorisation of the copyright holder, technological protection measures would be eligible for legal protection against circumvention.  On the other hand, embedding by means of clickable links using the framing technique does not require the authorisation of the copyright holder as it is not a communication to a ‘new’ public.

Furthermore, 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, would constitute effective protection measures within the meaning of Article 6 of the InfoSoc Directive.