EU Adviser Rules for German Library in Fight Over Embedded Links

The European Court of Justice in Luxembourg. (Courthouse News photo/Molly Quell)

(CN) — In siding with a major German cultural institution, a European magistrate held Thursday that websites that embed digital media as links are not violating European Union law.

In issuing his advisory opinion, Maciej Szpunar, an advocate general for the European Court of Justice, said the Stiftung Preussischer Kulturbesitz – the Prussian Cultural Heritage Foundation – is not violating copyright laws by running a digital cultural library featuring thumbnails and links to works at participating institutions, such as museums. The foundation is government-funded.

Szpunar said embedding works from other websites does not require the consent of the author because it can be assumed that permission has already been given for publication on the linked website. He said the digital library’s use of thumbnails and links does not create a new audience.

He found embedding work “made freely available to the public on a website with the consent of the rightholder” cannot be deemed to be a new form of communication with the public.

“Hyperlinks are in fact the very essence of the World Wide Web and differentiate it, for example, from the Library of Alexandria,” the advocate general said. He added that the European Court of Justice, the European Union’s top court, “has recognized in its case-law the importance of hyperlinks for the operation of the World Wide Web and for freedom of speech, which is bolstered by the World Wide Web.”

Szpunar’s opinion is not binding on the court but is seen as key legal guidance.

A copyright collection society, the Verwertungsgesellschaft Bild-Kunst, wants the Prussian Cultural Heritage Foundation to take technological measures to ensure the thumbnails it features are protected from being used by third parties. The copyright society wants the cultural foundation to sign license agreements to prevent third parties from obtaining the images it features.

The foundation said the society’s demands were too difficult to meet and not legally required. Germany’s federal court asked the European high court to weigh in on the case.

Courthouse News reporter Cain Burdeau is based in the European Union.

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