The Opinion of Advocate General Maciej Szpunar at the CJEU on the issue of permissible embedding of digital media on Internet sites.
“The heroes of George Lucas’ Star Wars film saga were able to travel through ‘hyperspace’ faster than the speed of light using a ‘hyperdrive’. In a similar fashion, internet users can ‘travel’ through ‘cyberspace’ using hyperlinks. … [This presents] a number of challenges from the point of view of … copyright law.” This is the introduction by the Court of Justice of the European Union’s (CJEU) Advocate General Maciej Szpunar in his Opinion from September 10, 2020 (C-392/19), giving his assessment on the issue of the permissible embedding of digital media on webpages. In his Opinion, relating to the case of framing, clickable links do not require the explicit authorization of the copyright holder; in the case of inline linking, thus, the direct embedding of content by way of automatic links, however, such authorization is necessary.
License dispute between library and collecting society
The case relates to a licensing dispute between the German Digital Library and the Collecting Society (VG Bild-Kunst). The German Digital Library, which is a member of the Stiftung Preußischer Kulturbesitz (Prussian Cultural Heritage Foundation), intends to show copyright-protected preview images on its website, which may also be embedded on other websites. For this purpose, the German Digital Library requests a license from the Collecting Society. The Collecting Society administrates the rights of the authors and is in principle required to grant the license to any person who so requests “on reasonable terms.” In the case at issue, it considers it reasonable to license the use only if the German Digital Library takes technical protective measures against the framing of the preview images. The German Digital Library considers these measures to be unreasonable.
Clickable links and inline links
Advocate General Szpunar points out that the issue of whether it is possible to prohibit the reproduction of copyright-protected digitized content without technical protection against framing on the internet must be assessed in a differentiated manner. He makes a distinction between clickable links and automatic links (inline links).
When embedding a link that has to be actively clicked on, no explicit authorization of the copyright holder is required and therefore no independent licensing by the collecting society is necessary. This applies in the case at issue even where technical protection measures against this procedure are circumvented during framing. After a link has been clicked on, that homepage is opened either in place of the page containing the link or in a new window. The user is therefore aware that he or she has changed sites. In addition, the website with the embedded link addresses the same audience as the original website. Thus, in this case there is no reproduction within the meaning of copyright law for which a further authorization is required. Rather, the copyright holder is deemed to have granted authorization not only for the original website, but also implicitly for the publication on the linked website.
On the other hand, in the case of embedded content, such as graphics or videos, by way of automatic links (inline linking), the author’s explicit authorization is required, said Szpunar. In case of inline linking, content is embedded in a website in such a way that it is automatically displayed when the website is opened, i.e. without any user intervention. For the user, however, there is then no connection to the original site, since everything takes place on the other site containing the link. Furthermore, only the public of the website containing the automatic link benefits from the content. In this case, Szpunar argues that the copyright holder did not take into account the inline link site when granting authorization for the original site. Therefore, the owner of this website would make a new reproduction and therefore requires a new authorization from the copyright holder.
The decision of the CJEU is still pending
In the past, the CJEU has frequently dealt with the topic of framing. The Advocate General now specifies this case law in his Opinion. He stipulates that the authorization of the copyright holder and thus the (original) licensing cannot refer to “all internet users,” since then the copyright holder would lose control over the dissemination of his or her work, which would lead to the exhaustion of his or her exclusive right, which is unintentional.
A decision of the Court is still pending and it remains to be seen whether the CJEU judges share the Advocate General’s differentiated assessment. The Opinions are not binding on the CJEU judges, but they often follow the Advocate General’s legal opinion.