The ECJ is doing a roll backwards in its legal interpretation when it comes to framing. For more on the topic and the role of the BGH, see this post.
If the copyright owner has taken or caused to be taken restrictive measures against framing, the embedding of a work in a third party website by means of this technique constitutes making that work available to a new audience. The permission of the copyright holder must therefore be available for this public reproduction.
The Prussian Cultural Heritage Foundation links digitized content on its website that is stored in the web portals of the supplying institutions. As a “digital shop window”, the German Digital Library itself only stores preview images.
VG Bild-Kunst made the conclusion of a license agreement on the use of its repertoire of works in the form of thumbnails conditional on the inclusion in the agreement of a provision according to which the foundation undertakes to implement effective technical measures against the framing by third parties of the thumbnails of these works displayed on the portal of the German Digital Library when using the works. Since the Foundation did not consider such a contractual condition to be appropriate on copyright grounds, it brought an action before the German courts to establish an obligation on the part of VG Bild-Kunst to grant the license in question without making it conditional on measures being taken to prevent framing.
At the request of the German Federal Court of Justice, the ECJ first ruled that the change in the size of the works on the occasion of a framing is irrelevant for the assessment of whether a communication to the public exists, as long as the original elements of these works are recognizable.
The ECJ then states that the framing technique constitutes an act of communication to the public, as it makes the displayed object accessible to all potential users of a website. Moreover, it points out that, since the framing technique uses the same technical process as that already used for the communication to the public of the protected work, that communication does not satisfy the requirement of a new public and does not therefore constitute a communication “to the public” within the meaning of Directive 2001/29. However, this would only apply if access to the works in question on the original website was not subject to any restrictions. In such a case, the rightholder has permitted the reproduction of his works to all Internet users from the very beginning.
If, on the other hand, the rightholder has taken or caused to be taken restrictive measures in connection with the publication of his works from the outset, then he has not consented to the free communication of his works to the public by third parties. Rather, he wanted to limit the public having access to his works to users of a particular website. Public reproduction in frames would then require the permission of the relevant rights holders.
Even though this is logical, the aspect has long been controversial.
However, the ECJ clarifies that the copyright holder cannot limit its consent to framing by means other than effective technological measures. Indeed, without such measures, it might be difficult to verify whether the rightholder intended to oppose the framing of his works. The restriction in the general terms and conditions of a provider or in similar legal texts is therefore not sufficient to make framing illegal under copyright law.