The CJEU considers that framing can constitute a making available to a new public
The German Federal Court of Justice has referred the issue of framing and Directive 2001/29 to the CJEU. On March 9, the CJEU issued an opinion explaining that framing constitutes making available to a new audience, provided that the copyright owner has adopted or imposed restrictive measures.
Framing, or transclusion, is a technique of substituting the address of one site for another. The insertion on a first site of a hypertext link referring to a second site, thus gives the impression that the first site is the owner of the contents diffused.
At issue are the clauses of a license agreement for the use of a catalog of works in the form of thumbnails between a collective management society for copyright in the visual arts and a German foundation operating a digital library dedicated to culture.
The collecting society made the signing of the license agreement conditional upon the foundation agreeing to implement “effective measures against the transclusion of these works or protected objects by third parties”.
The foundation considered the presence of this clause unreasonable and brought an action before the German courts to force the conclusion of the license agreement without the disputed clause.
The Federal Court of Justice referred the question of the interpretation of Article 3, paragraph 1 of Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society to the ECJ for a preliminary ruling, in order to determine whether or not framing is a means of communication to the public.
The CJEU first held that the library did not itself store the thumbnails, which are images of reduced size. The library is in fact a “digital shop window” through which, when a user clicks on a thumbnail, he is redirected to the page of the participating institution, containing a larger version.
The Court then recalled that the publication by the library of these copyrighted thumbnails constitutes an act of communication to the public within the meaning of Directive 2001/29 and is therefore subject to the authorization of the copyright holders.
Consequently, the Court held that, where the rightholders have authorized the communication of the protected works on a first site by requesting the implementation of restrictive measures aimed at preventing a third party from freely communicating those works to the public, a second site may not use the framing technique to make the works available to a new public on its own site. The Court thus interprets the taking of restrictive measures as a desire to communicate the works in question only to the Internet users of the site in question.
On the other hand, if the communication on the first site was not subject to restrictive measures, the Court states that it should be considered that the owner authorized, from the beginning, the communication of the works to all Internet users, so that the framing technique does not imply communication to a new public.
In other words, if the owner has adopted or imposed restrictive measures for the communication on the original site, the second site will not be able to use framing to insert its works without its agreement. The owner may therefore demand appropriate remuneration for this.
By the IP/IT team of UGGC Law Firm
 « Les États membres prévoient pour les auteurs le droit exclusif d’autoriser ou d’interdire toute communication au public de leurs œuvres, par fil ou sans fil, y compris la mise à la disposition du public de leurs œuvres de manière que chacun puisse y avoir accès de l’endroit et au moment qu’il choisit individuellement. »