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CJEU Does Not Follow Advocate General on Linking: Latest Copyright Ruling Preserves “Traditional” Linking but Opens the Door to Technical Protection Measures

Brussels, BELGIUM – Today, 9 March 2021, the Court of Justice of the European Union (CJEU) issued after almost two years its long awaited ruling in the VG Bild-Kunst case (C-392/19). The judgement is obviously limited to the case at hand and constrained by the questions put forward in the request for a preliminary ruling by the German Federal Court of Justice (Bundesgerichtshof – BGH).

The following statement can be attributed to Ms Caroline De Cock, C4C coordinator:

“The CJEU’s reasoning builds on previous cases such as Svensson (C-466/12) and GS Media (C-160/15), that all recognize the importance of allowing mainstream linking to continue on the Internet. The impact of this decision does not affect plain vanilla linking and embedding done by millions of users every day, without any copyright related implications.

“The Court does not close the door to hotlinking infringing copyright, but only if rightholders use specific ‘technical protection measures.’ It seems to reject the AG’s dangerous interpretations that (i) copyright owners cannot be asked to ‘opt-out’ but must ‘opt-in’ to allow this type of links (ii) ‘non-clickable’ links are always an infringement.”

As is often the case, the CJEU has responded to a specific set of questions related to a very narrow situation of hotlinking and circumvention of protection measures against framing, confirming that a licensee needed to do more to protect images that were licensed to it when putting them online. The dispute concerned the need for technical protection measures to be implemented by a licensee of VG Bild-Kunst, who considered the licence requirement imposed by the latter to be unreasonable. In the case at hand, VG Bild-Kunst had asked its licensee to ensure that the images could only be viewed on the original website, a condition which the licensee failed to meet.

The CJEU ruled that “where the copyright holder has adopted or imposed measures to restrict framing, the embedding of a work in a website page of a 3rd party, by means of that technique, constitutes making available that work to a new public, which must therefore be authorised,” hence following the reasoning set out in Advocate General Szpunar’s opinion

As regards linking, the case related to a very specific and narrow type of linking, namely “hotlinking” or “inline linking,” whereby a webpage contains graphics or audio-visual elements as embedded files that display automatically but without the user of a page seeing the original link or webpage at the source. This practice is extremely rare online and is fundamentally different from more mainstream linking such as embedding or framing of for example an Instagram post or a Scribd document on a webpage, where the link to the original website is apparent to the user and can be reached by clicking on it.

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We bring together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright.

For press inquiries on this please contact Ms De Cock at secretariat@coalition4creativity.org or +32 474 84 05 15.

[Note: We are still analysing and reserve the right to update based on full ruling.]

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