Removing the Frame - Circumvention of Technical Measures Stopping the Sharing of Copyright Works is Communication to the Public, says CJEU

The use of images online seems to be near a free-for-all, where content is copied, shared and viewed across websites and with very little consideration on IP issues. One such way is 'framing', where you showcase an image on your website through the original URL on the website where it was uploaded. This allows for you to share the image, but not copy it across, i.e. 'framing' it within your web page. The CJEU looked at this matter some 6 years ago in BestWater, however, the issue has now come back again for determination at the CJEU. This time around the question related to the restriction of framing on websites.

The case of VG Bild-Kunst v Stiftung Preußischer Kulturbesitz concerned a German digital library called "Deutsche Digitale Bibliothek", operated by SPK, which networks German cultural and scientific institutions. The website contains links to digitized content stored on the internet portals of participating institutions; however, many of these are stored as simple thumbnails on the site, which then lead to the page on that subject matter. VG asserted that the license agreement between the parties allowing for the use of its catalogue works in the thumbnails required that adequate security measures be put in place by SPK when using the images on the DDB website. SPK objected to this, considering it to not be a reasonable requirement, and sought declaratory relief to this effect in the German courts, requiring the granting of the license by VG without such a condition.  After traveling through the German courts the matter ultimately ended up with the CJEU, who handed down their decision earlier this month.

The CJEU summarized the question posed as "...whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the embedding, by means of the technique of framing, in a third party website page of works that are protected by copyright and that are made freely accessible to the public with the authorisation of the copyright holder on another website, where that embedding circumvents protective measures against framing adopted or imposed by the copyright holder, constitutes a communication to the public within the meaning of that provision". 

Article 3 requires that EU Member States protect the exclusive rights given to copyright holders through national legislation, specifically in relation to communication to the public via wired or wireless means (i.e. the Internet). The focus for the CJEU was to decide whether the framing of the thumbnails on the DDB website is itself to be considered to be a communication to the public within the meaning of Article 3(1). 

The CJEU noted, as a primer, that a 'communication to the public' includes the transmission of works wirelessly via the Internet. Additionally, authorization of the inclusion of protected works in a communication to the public does not exhaust the right to authorize or prohibit other communications to the public of such works. As such, VG still retained the right to prevent any further communication it objected to. 

As has been discussed before, the actual 'communication to the public' of a work looks at two factors: (i) an ‘act of communication’ of a work; and (ii) the communication of that work to a ‘public’. 

Firstly, any act where a user, in full knowledge of the consequences of what he or she is doing, gives access to protected work is liable to constitute an act of communication. Secondly, for that act to be classed as a 'communication to the public', the protected work must be communicated to a public consisting of an indeterminate number of potential recipients. The communication itself has to be done using specific technical means different from those previously used, or to a new public, i.e. a public that was not already taken into account by the copyright holder when he or she authorized the initial communication. 

Following the consideration of the legal underpinnings of the matter, the CJEU turned to considering whether there had indeed been a communication to the public.

The act of framing, according to the CJEU, at first blush does constitute a communication to the public; however, as set out in previous CJEU case law, provided that the technical means used by the technique of framing are the same as those previously used to communicate the protected work to the public on the original website (i.e. the Internet), the work is not communicated to 'the public' as it isn't communicated to a new public. Since the works were left freely available on the websites, with no technological means implemented to prevent sharing, a new public wasn't possible and they tacitly authorized the distribution of the works by third-parties. However, if a link has been added to a website allowing for the circumvention of any technological means implemented to stop the sharing of the content, this would be a communication to the public and therefore an infringement. 

Tying matters to the case at hand, the CJEU saw that "...by adopting, or by obliging licensees to employ, technological measures limiting access to his or her works from websites other than that on which he or she has authorised communication to the public of such works, the copyright holder is to be deemed to have expressed his or her intention to attach qualifications to his or her authorisation to communicate those works to the public by means of the Internet, in order to confine the public for those works solely to the users of one particular website". If there then is sharing of those works, e.g. by framing, it would be communication to the public and an infringement (as that was not authorized by the copyright holder). 

Following further discussion, the CJEU concluded that "...Article 3(1)... must be interpreted as meaning that the embedding, by means of the technique of framing, in a third party website page, of works that are protected by copyright and that are freely accessible to the public with the authorisation of the copyright holder on another website, where that embedding circumvents measures adopted or imposed by that copyright holder to provide protection from framing, constitutes a communication to the public within the meaning of that provision".

The decision adds on to the already sizeable precedent pool on framing, and highlights that, if technical measures are employed to prevent the sharing of content beyond a specific website, the communication of that work would be an infringement of copyright. This makes sense, since the licensing, and subsequent protection, of works for use on a specific website would be pointless if that were rendered effectively void by allowing for the wanton sharing of that content. The case highlights the need for copyright holders to put in requirements for the implementation of measures to protect their rights so as to avoid implicit consent to the sharing of their works online. 

Non-Fungible Tokens (NFTs) are All the Rage - It Is Not Copyright and is Ripe for Misunderstanding and Misuse

Anyone who works in the sphere of intellectual property in the law will have come accustomed to misunderstandings in how various IP rights work, what they mean in real terms and how they can be utilized by both people and businesses. Recently I have come across a new world of "copyright" (even though it is not copyright in any form) that seems to be speculated over, which is Non-Fungible Tokens or NFTs that are used to sell "rights" in digital art. 

For the uninitiated, NFTs are a part of the Ethereum cryptocurrency blockchain, allowing for the distribution and/or sale of unique (i.e. non-fungible) tokens that are separate from the cryptocurrency itself. NFTs themselves can be anything that is digital, and identified as unique through the token (proving that the piece is indeed the original), and can be sold much like a physical piece of art, but in the digital world. What has made things surprising to this writer is the misunderstanding and mixing up of NFTs with copyright, so it might be worth discussing the differences between these and the implications of copyright on the sale of NFTs. 

As a brief primer, copyright is an IP rights that protects the expression of ideas, but not the ideas themselves. This means that you will have copyright in e.g. a piece of art you draw, a photo you take or a video you create, and can utilize copyright to prevent others from copying that work. This also enables the licensing of these rights to others, allowing them to copy the works under the terms of the license; however, copyright does not really impact the sale of a physical item such as a painting. Often the latter point leads to confusion as to the application of copyright to the sale of works, but it undoubtedly will impact the sale of digital copies of works. 

The potential problem with how NFTs are portrayed seems to equate them to the world of copyright, meaning the NFT gives you some sort of rights over the digital art you've purchased the token for. In fact, this is not the case, since NFTs don't give anyone any rights over the digital art, but simply act as provenance to the fact that you "own" the original digital piece. Even though you "own" the art, the ultimate copyright holder retains the rights over the distribution of the art piece. 

With that in mind, do you actually own anything? Yes and no. You own the 'receipt' for the digital art piece in the form of the NFT, but this doesn't give you any further rights, especially under copyright. The artist keeps those rights unless they sell it to you along with the NFT (and in most instances they will not do so). 

One issue that can be overlooked here is individuals or companies could conceivably claim an NFT on works that are not their own and take away monetary gains from artists who don't know, or haven't cared to, do so themselves. This could then lead to a wider sharing of works through these "authenticated" copies that negatively impacts the artist, including the aforementioned monetary loss through a missed opportunity to sell a genuine NFT to your works. Artists will have claims under copyright to challenge the sale of any NFTs (and the potential distribution of their works). 

It seems that NFTs are riding the craze of cryptocurrency, and one should be careful and understand what NFTs actually mean in terms of ownership, and what implications there are in the light of copyright. There will be issues that artists, sellers and purchasers will have to keep in mind, and while it might be cool to "own" a 'signed' copy of a piece of digital art when you buy an NFT, its limits are simply that; it's a way to prove that you have potentially purchased the genuine article, but that's it.