Round-up of Cjeu Copyright Decisions in 2021

The Grand Chamber held, for the first time, that linking to a copyright work lawfully published on a third-party website may be restricted through contract and not solely through technical restrictions on access (for instance, a paywall). To this end, however, the concerned rightholder is required to adopt or mandate the adoption of effective technological measures. Lacking these, an unauthorized act of linking shall not be infringing.

In this referral from Germany’s Federal Court of Justice (‘BGH’), the CJEU was asked, for the first time, whether linking could be restricted by contract. Prior to that, the Court had considered other aspects to determine whether an act of linking falls within the scope of application of Article 3 of the InfoSoc Directive 2001/29, such as the existence of technical restrictions on access like a paywall (Svensson, C-466/12, EU:C:2014:76 and BestWater, C-348/13, EU:C:2014:2315), or the legal status—licensed or unlicensed—of the subject matter linked to (GS Media, C-160/15, EU:C:2016:644). Unlike cases like Svensson and GS Media, which focused on hyperlinks as a particular type of ‘clickable link’, VG Bild-Kunst also related to a different linking technique, that is framing or inline linking.

The referral was made in the context of a dispute between between collecting society VG Bild-Kunst and Stiftung Preußischer Kulturbesitz (‘SPK’). The latter operates a digital library, which networks German cultural and scientific institutions and is devoted to culture and knowledge. The relevant website displayed links to digitized content hosted on the internet portals of participating institutions. It only stored—with the authorization of relevant rightholders—thumbnails of the original images, which could be enlarged by the user by clicking on them. That website also contained links redirecting users to the websites of the institutions in possession of the original objects.

The licensing agreement between VG Bild-Kunst and SPK included a clause that required the latter to apply effective technological measures against the framing of the thumbnails displayed on its website. The implementation of such measures would serve to prevent inline linking and the embedding by framing of the thumbnails available on SPK’s website on third-party websites, thus preventing users of the latter to access such thumbnails independently of that website. According to SPK, such clause would be unreasonable. As such, it would be allegedly contrary to the provision by which Article 16 of the Collective Rights Management Directive 2014/26 was transposed into German law. Consequently, SPK refused to implement the measures requested by VG Bild-Kunst and sought a judicial declaration that the latter would be instead required to grant the licence in question without such a clause.

Further to mixed outcomes at the level of lower courts, the dispute reached the BGH, which decided to stay the proceedings and seek guidance from the CJEU: does the unauthorized framing and display of protected content lawfully hosted on a third-party website constitute an act of communication to the public by the link provider (in this case: SPK) under Article 3(1) of the InfoSoc Directive, if this is done by circumventing measures against framing taken or requested by the rightholder (in this case: VG Bild-Kunst)?

The Grand Chamber agreed with Advocate General (‘AG’) Szpunar (EU:C:2020:696) that linking may be restricted by contract. Unlike the AG, it did neither adopt a differential treatment of links nor did it formally offer any re-calibration of the ‘new public’ criterion. The Court focused not on what a link does (automatically displaying content or not), but rather on what the rightholder did. If the rightholder did expressly authorize the publication of their work or protected subject matter without reservations or without otherwise adopting or imposing the adoption of technological measures limiting access/use of their work or protected subject matter, then a link to such content does not fall under Article 3 of the InfoSoc Directive.

With the stated goal of inter alia preserving legal certainty, the Court reasoned that, lacking technical restrictions on access, linking to protected content may be only restricted through effective technological measures within the meaning of the Nintendo ruling (C-355/12, EU:C:2014:25). It follows that a rightholder’s consent or lack thereof needs to be expressed through a technological solution, rather than solely by unilateral declaration or through licensing terms.

As discussed at greater length elsewhere (E Rosati, ‘Linking and copyright in the shade of VG Bild-Kunst’ (2021) 58(6) CML Rev 1875), the decision’s broader implications may be evaluated from two main perspectives—the modalities through which a rightholder’s consent may be expressed and the treatment of different types of links.

The Court did not formally seek to re-assess or give the impression of ‘departing’ from its own case law on the right of communication to the public, although—as a matter of fact and in line with more recent decisions like Renckhoff, C-161/17, EU:C:2018:634—it quietly sought to soften the (sharp) angles of the ‘new public’ notion, in a way that is substantially not too dissimilar from the recommendations of AG Szpunar.

Unlike the AG, however, the CJEU refused to endorse an approach that would require differentiating between different types of links and could, therefore, suffer from technological obsolescence. While such an approach has objective merits and the ambition to be future-proof, it also lends the side to the criticism that a uniform treatment of different linking modalities fails to have due regard to the circumstance that ease of content access does objectively create a difference in how ‘indispensable’ the link provider’s own intervention is. As such, a solution like the one indicated by AG Szpunar—alongside a braver indication of what a ‘new public’ does entail, especially in the aftermath of cases like Renckhoff—would have offered a firmer footing to the current state of technological advancement and market practices.

The result ultimately achieved by the Court is also one that poses questions of compliance with general principles of copyright law. This is not unprecedented in CJEU copyright jurisprudence: there are several instances in which the Court has been more concerned with the outcome to be achieved, rather than providing a compelling reasoning for it. Reference may be made to the very case law on linking, including the key role assigned to the ‘new public’ in Svensson and the ‘unorthodox’ (as the AG referred to it in his Opinion, [54]) reliance on subjective elements (the knowledge of the link provider and/or whether they pursue a profit-making intention) as determinative of prima facie liability in GS Media.

The CJEU ruled that there is no de minimis threshold to the application of the right of communication to the public in Article 3 of the InfoSoc Directive 2001/29 and that also copyright ‘trolls’ may be entitled to the measures, procedures and remedies under the Enforcement Directive 2004/48.

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