According to Advocate General Szpunar, “inline linking” should be authorized by rights holders

The Advocate General has issued an Opinion in Case C-392/19, VG Bild-Kunst v. Stiftung Preußischer Kulturbesitz

In the latest copyright-related proceedings dealing with online sharing of content, the German Federal Court of Justice asked the Court of Justice of the European Union (the “CJEU”) to interpret the provisions of Directive 2001/29,[1] which states that Member States shall provide authors with the exclusive rights to authorize or prohibit any communication to the public of their works.

According to Advocate General Szpunar (the “AG”), “embedding” works in a webpage by means of clickable links using the “framing” technique (that is, including them by linking to other websites where they have been made available to any Internet user) should not require any further authorization from rights holders. In this context, if rights holders gave their authorization when their work was originally made available, then no other act of communication to the public should be deemed to have occurred absent a “new” public (that of the linked website). The above applies even if such embedding may circumvent technological protection measures adopted or imposed by the rights holders: in fact, such measures do not prevent access to a work, nor do they represent a means of accessing it. They consist simply of a manner of displaying it on a screen.

Conversely, the AG advised that what is known as “inline linking” (that is, embedding protected works in a website using links through which they are automatically displayed on the linking website and viewed as soon as the page is opened, without any further action by the user) should require the authorization of rights holders. As a matter of fact, the AG maintained that these automatic links constitute an act of communication directed to the public of the linking website, which was not taken into account by the rights holders when they originally made their works available on the linked webpages. As such, this public should be regarded as new, and the act of “inline linking” must be authorized. What led the AG to this conclusion is that any apparent connection to the original website is lost in the process of this linking technique, which allows users to see the embedded works as integral parts of the linking page irrespective of where they are actually taken from (or, more precisely, irrespective of the servers where they were originally stored).

The interpretation suggested by the AG is consistent with the high level of protection that should be ensured to rights holders when it comes to the online exploitation of their works and is without prejudice to the potential applicability of certain exceptions or limitations in the event that such automatic links are made available for citation or critique purposes.

Lastly, with regard to the circumvention of technological protection measures, the AG noted that although Directive 2001/29 does require Member States to ensure legal protection for works, according to the case law of the CJEU such legal protection can only apply to those acts authorized by rights holders. Based on the reasoning of the AG, only inline linking (as opposed to simple framing) requires such authorization and is eligible for the legal protection in question.

Now the CJEU will examine the case and decide – based in part on its previous case law – whether acts of “inline linking” should be deemed as constituting a communication to the public within the meaning of the disputed provisions of the Directive and as such be subject to authorization.

[1] Directive 2001/29/EC of the European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

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