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. 

Framed Questions - ECJ Takes on Content Framing

As social media has changed how we interact with one another, it also has profoundly changed the culture and environment where copyright (and other intellectual property rights) reside. Videos, pictures and other content can very easily go 'viral', especially through sharing via Facebook, Twitter and other websites, even sans the original source of the content. This aggressive sharing and consumption of content can clearly yield huge benefits, both monetary and other positive outcomes; however it presents a much darker side to the sharing of this content, more specifically the copying and distribution of infringing content. Whether it be re-hosting a video originally on YouTube, or copying and watermarking other people's popular images, the Internet is full of opportunistic people rearing and ready to cash in on the next 'viral' hit. Not all sharing is bad, and often websites can host content and rightfully attribute the content to its source, or just link directly to it - which presents a question: can you share copyrighted content, especially through what is called 'framing' (placing someone else's content within the confides of your own website, but not directly hosting the content), or are you infringing on the rights through linking to this content and placing in within your own website?

The case, which endeavored to answer this question, was BestWater International GmbH v Michael Mebes (judgment only available in German or French). BestWater International are a company in the business in making and selling water filtration systems, and in an effort to boost their sales, made a 2-minute promotional video and uploaded it to YouTube, undoubtedly attempting to reach the droves of water filtration enthusiasts using the site. Michael Mebes and his co-defendant Stefan Potsch are independent agents for BestWater's competitor, who embedded a video link to BestWater's promotional video on YouTube (which they themselves uploaded onto the service). BestWater subsequently sued the pair for copyright infringement, and the case finally culminated in the European Court of Justice late last year. In the absence of a judgment in English (which this writer was waiting for) the information conveyed in this post has been parsed from several sources; however hopefully represents an accurate reading of the case.

The question posed to the Court was simple: "Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website... constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?" In a lot of ways the case is similar to one discussed on this very blog on an earlier note; Svensson v Retriever. Even so, Svensson merely discussed the distribution of content, which is freely available on another website, when BestWater's focus is on framing that content within your own site, arguably presenting it, in a roundabout way, as your own. 

One should always be careful when framing things

Thinking back to Svensson, the decision in the case established, quite firmly, that if a work is communicated to the public, and is freely available, distributing that content without actually making new copies of it, does not constitute a communication to a new public and infringe copyright. Unceremoniously the Court saw that "[t]he embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Directive 2011/29/EC] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication". 

What is key in the BestWater decision, much like in Svensson, is the authorization of the party who communicates the original work to the public. If the content is beyond the reach of most Internet users, framing the content clearly infringes copyright; however, should the party provide the content for all Internet users (i.e. freely available through services like YouTube), it will not infringe copyright. Should a third-party, without the consent of the copyright holder, upload a video to YouTube, and then promptly frame it on their website, they will be infringing copyright within the meaning of BestWater and Directive 2001/29/EC.

The two decision reflect a clear need for change in attitudes of copyright holders when posting content online. Framing applies just as well to images and sound files as it does to video, potentially causing issues to those who are not careful in their communication of their copyrighted content. This writer, for one, believes this approach is correct, even with the hazards it potentially presents. Should you choose to share content with very little regard to its restrictions, you choose to share your content with more people that you might have intended to, and for users to be punished for your mistake seems highly inequitable. Nevertheless, individuals and companies should be more careful in their content sharing, especially when considering the openness of the Internet, and the potential benefits more open sharing can give you.

Source: IPKat