Copyright infringement by framing? The ECJ please!

The Federal Court of Justice currently has to decide whether a collecting society may make the conclusion of a contract for the use of digital works of copyrighted works on the Internet subject to the fact that the user is able to Takes measures against so-called “framing”, i.e. against the embedding of the content stored on this user’s server and posted on his website on the website of a third party.

The plaintiff acting here is the Prussian Cultural Heritage Foundation and thus the sponsor of the German Digital Library. It offers an online platform for culture and knowledge that connects German cultural and scientific institutions. Digitised content stored in the web portals of these institutions is available on the library’s website. The library stores thumbnails of this digitized content. Some of these content, such as works of fine arts, are protected by copyright.

The local defendant, the collecting society Bild-Kunst, exercises the copyright powers of its affiliated authors in works of fine arts. The applicant requires the defendant to conclude a contract giving it the right to use those works in the form of thumbnails. The defendant makes the conclusion of such a contract of use subject to the inclusion in the contract of the following provision:

The licensee undertakes to apply effective technical measures to protect those works or subject-matter against framing when using the works and subject-matter in the contract.’

The applicant rejects such a provision of the contract and, in its action, has sought a declaration that the defendant is obliged to conclude a contract of use without that provision. The Landgericht Berlin had already dismissed the action as inadmissible. On the applicant’s appeal, the Court of Appeal found the defendant’s obligation to conclude a contract of use without that clause.

However, the Federal Court of Justice, which is now obliged to rule, has suspended the proceedings and asked the ECJ the question of the interpretation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the Information society provided whether the embedding of a work available on a freely accessible website on a freely accessible website in the website of a third party by means of framing is a public representation of the work within the meaning of Article 3(3) of the work. 1 of Directive 2001/29/EC, where it is carried out bycircumventing protective measures against framing taken or initiated by the rightholder.

The defendant is a collecting society in accordance with Paragraph 34 para. 1 Sentence 1 of the Act on Collecting Societies is obliged to grant rights of use to everyone on reasonable terms on the basis of the rights exercised by it. However, the defendant is also obliged to exercise and enforce the rights of the authors affiliated to it. In the view of the Bundesgerichtshof, the defendant could therefore possibly require the contract of use to be concluded with the applicant to oblige the applicant to apply technical protective measures against framing. This presupposes, however, that the framing of the thumbnails freely accessible to all Internet users on the applicant’s website, by way of framing, by way of circumventing such protective measures, must have the right of authors to: public representation of their works. Whether, in such a case, the right to communication to the public under Article 3(3) 1 of Directive 2001/29/EC, which is infringed by Paragraph 15(1) of the 2 UrhG is transposed into German law is doubtful and therefore requires a decision by the Court of Justice of the European Union.