EU High Court Finds Embedded Images Can Violate Copyright Rules

The decision could have far-reaching consequences for websites displaying copyrighted works.

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

LUXEMBOURG (CN) — If copyright holders take steps to prevent their works from being embedded on third-party websites, doing so violates European Union law, the bloc’s top court ruled Tuesday. 

In a case pitting a German cultural foundation against a copyright protection organization, the European Court of Justice held that if images displayed on one website are embedded on another without permission, that violates copyright regulations if the copyright holder took steps to prevent it. 

“Where the copyright holder has adopted, or obliged licensees to employ, measures to restrict framing so as to limit access to his or her work from websites other than that of his or her licensees, the initial act of making available on the original website and the secondary act of making available, by means of the technique of framing, constitute different communications to the public, and each such act must, consequently, be authorized by the rights holders concerned,” the Grand Chamber wrote. 

The German Federal Court of Justice referred the dispute between the Prussian Cultural Heritage Foundation and the copyright collecting society, VG Bild-Kunst, to the EU’s high court in 2019. 

The foundation runs a digital library showing smaller versions of selected works art with links to where the original work can be found. To that end, it negotiated several licensing agreements with VG Bild-Kunst, which licenses copyrighted works on behalf of the creators. 

As part of its licensing agreements, VG Bild-Kunst required the foundation to take steps to prevent third parties from using the thumbnails. In particular, it wanted the government funded-foundation to prevent third-party websites from embedding the images on their own sites via a technique known as framing, where a portion of a website is embedded within the confines of another website. 

The foundation found the requirements were too difficult to meet and felt they were not legally required and asked a German court to remove them. 

The German Federal Court of Justice asked the Luxembourg-based Court of Justice to weigh in on whether images shown in framing would be considered a “communication to the public” under the EU’s Copyright Directive. The 2001 regulation harmonized copyright laws across the 27-member bloc and prevents copyrighted works from being shared with the public without permission from the copyright holder. 

The court had previously ruled that using a hyperlink to direct someone to another website did not violate copyright regulations. However, the 15-judge panel found that framing is different than linking.

“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 authorization 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 ruling states.  

The court’s decision goes against a nonbinding opinion from one of its magistrates last year. 

Whether the Prussian Cultural Heritage Foundation can be required to prevent its images from being embedded on other websites remains to be decided by the German court. 

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