German Federal Court of Justice refers new case on communication to the public

Framed Kat picture

Is framing and displaying protected content lawfully hosted on a third-party website an act of communication to the public under Article 3 of the InfoSoc Directive if done by circumventing measures against framing taken or introduced by the rightholder? 

This, in a nutshell on which Germany's Federal Court of Justice is seeking guidance from the Court of Justice of the European Union (CJEU) in a new referral announced today. The reference number for the background national proceedings is  I ZR 113/18.

As explained in the press release [translated with the help of Google Translate], the First Civil Division of the Federal Court of Justice must decide whether a collecting society may make the conclusion of a contract on the use of digital copies of copyright works on the internet dependent on the user taking effective technical measures against so-called framing, ie against the embedding of the content stored on the server of this user and posted on its website on the website of a third party.

The claimant, the Prussian Cultural Heritage Foundation, is the holder of the German Digital Library. It offers an online platform for culture and knowledge that links German cultural and academic institutions. The website of the library can be accessed via electronic links. The digitized content is stored on the websites of relevant institutions. The library stores thumbnails of digitized content. Some of such content, such as works of fine art, is protected by copyright.

The defendant, collecting society VG Bild-Kunst , manages the copyrights in works of fine art.

The claimant requested the defendant to conclude a contract granting it the right to use these works in the form of thumbnails. 

Framed Kat

The defendant made the conclusion of such a licensing agreement subject to the inclusion in the contract of a requirement that the German Digital Library implement technical protection measures to prevent users from including the images made available on its website on external websites via framing.

The German Digital Library refused and sued the collecting society, seeking a declaratory judgment that a condition of this kind could not be imposed.

As reported by The IPKat, last year the Higher Regional Court of Berlin held that VG Bild-Kunst’s condition for granting the licence did not constitute ‘reasonable conditions’ under § 34 VGG. It therefore obliged VG Bild-Kunst to enter into a contractual agreement without the ‘anti-framing’ clause. 

The case thus moved to the the Federal Court of Justice, which decided to stay the proceedings and make a referral to the CJEU. Further details to come: stay tuned!

Katpat to Mirko Brüß for letting The IPKat know about this new case.