Copyright – Automatic linking, October 2020

On September 10, 2020, Advocate General Maciej Szpunar delivered his Opinion in Case C‑392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitzrequest.

The case concerns a conflict between Verwertungsgesellschaft Bild-Kunst (‘VG BildKunst’), a copyright collecting society for the visual arts in Germany and Stiftung Preußischer Kulturbesitz (‘SPK’), a foundation registered under German law.

In order for SPK to use VG Bild-Kunst’s catalogue of works in the form of thumbnails in its digital library, Deutsche Digitale Bibliothek (“DDB”), VG Bild-Kunst imposed in the license agreement the obligation for SPK to use technical measures in order to prevent third parties from framing the thumbnails of the protected works or subject matter displayed on the DDB website. SPK deemed these conditions to be burdensome, and a legal dispute was brought before the German courts.

The Bundesgerichtshof (Federal Court of Justice, Germany) decided, on May 21, 2019 to refer the question to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling of whether the embedding of a work — which is available on a freely accessible website with the consent of the rightholder — in the website of a third party by way of framing constitutes communication to the public of that work within the meaning of Article 3 paragraph (1) of Directive 2001/29/EC where it occurs through circumvention of protection measures against framing taken or instigated by the rightholder.