‘Hyperlinking’ is the possibility of presenting, in a webpage, clickable buttons and pictures that lead to additional content, which is not hosted on the same webpage. This feature, which has been one of the defining characteristics of the Internet since its inception, presents unique challenges to copyright law.

On March 9, the Court of Justice of the European Union (CJEU) laid down a landmark decision on the issue of the circumstances under which linking to copyrighted content constitutes “communication to the public” – and, therefore, copyright infringement.

In the VG Bild-Kunst judgement (Case C-392/19), the CJEU was presented with a peculiar case. VG Bild-Kunst is a German collecting society, who licensed copyrighted content to SPK, a German operator of a digital library. VG Bild-Kunst gave SPK permission to use thumbnails of copyrighted images in its online library, when linking to VG-Bild’s catalogue of works. But VG Bild-Kunst included, in its licensing contract with SPK, a clause under which SPK would undertake to apply “effective technological measures” to stop third parties from further embedding those thumbnails of protected work.

SPK considered this clause to be unreasonable under copyright law, and brought an action against VG Bild-Kunst, seeking a declaratory judgement from German courts stating that the licensing agreement ought not to include such a clause.

During those proceedings, the German Bundesgerichtshof (Federal Court) referred to the CJEU the following question:

Does the embedding of a work – which is available on a freely accessible website with the consent of the right holder – in the website of a third party by way of framing constitute communication to the public of that work within the meaning of Article 3(1) of Directive 2001/29 where it circumvents protection measures against framing adopted or imposed by the right holder?

This question concerns Article 3(1) of the InfoSoc Directive (Directive 2001/29), and whether it constitutes “communication to the public” to embed on a website (by framing) a work that is freely available to the public, in a situation where such embedding circumvents protection measures that were adopted, or imposed by the rights’ holder.

The CJEU ruled that such types of embedding of works indeed constitute “communication to the public”, in those instances where the copyright holder placed protection measures to prevent such embedding of the work in the first place.

In the CJEU’s view, if the copyright holder has adopted, or imposed that licensees adopt, measures to restrict embedding of content, then they are expressing their “intention to attach qualifications to his or her authorisation […] in order to confine the public for those works solely to the users of one particular website”.

This is an interesting approach. The CJEU clarifies that the way a copyright holder acts toward the protection of its work (in this case, by adopting or imposing technical measures against embedding) has an effect on whether those actions ought to be deemed “communications to the public” (and, thus, infringing actions) when perpetrated by third parties. In a nutshell, the embedding, by means of the technique of framing, in a third party website page, of works that are freely accessible to the public with the authorisation of the copyright holder on another website, where that embedding circumvents measures adopted to provide protection from framing, constitutes a communication to the public.