The ECJ's VG Bild-Kunst case: Are there (legal) limitations to the use of links?

However, the ECJ has now (ECJ 9 March 2021, C-392/19 VG Bild-Kunst) clarified that copyright holders can protect their works from being shared online via the use of links and frames and offered guidance on how to do so.

What's known so far: Linking is widely allowed

An act of "communication to the public" (e.g. the publication of content online) requires the consent of the copyright holder. The same is true for acts of reproduction. Thus, it was and is illegal to provide copyrighted third-party content on one's own online medium in isolation from the original source without the copyright holder's authorisation.

However, a significant restriction applies when third-party content is embedded in a webpage by means of hyperlinks and frames (in the latter case, the third-party content is displayed in a frame and the source can be accessed by clicking on the frame). First of all, such links do not require a reproduction of the work, since the link leads to the initial source. Furthermore, the ECJ stated in two landmark decisions, that the provision of clickable links on a website to works freely available on another website does neither constitute an act of communication to the public (ECJ 13 February 2014, C-466/12 Svensson), even if the copyright holder has not granted permission for the publication on the linked website (ECJ 21 October 2014, C-348/13 BestWater).

The ECJ reasoned that the notion of "communication to the public" does not apply when

• works are shared by the same technical means as in the initial communication, and
• are not directed at a new public.

In case of hyperlinks to content freely accessible on a third-party website, the ECJ held that the same technical means are used and the "same public" (as the one that was taken into account by the copyright holder when they authorised the initial communication to the public) is addressed.

Only where it is established that a person knew or ought to have known that the hyperlink they posted provides access to a work illegally placed on the internet, may a link constitute an unlawful interference – such knowledge is assumed if the linking person acts in commerce (ECJ 8 September 2016, C-160/15 GS Media). The same applies if a link allows users of the website on which it is posted to circumvent the restrictions taken by the site to restrict the public's access to its own subscribers. Thus, if for example a link circumvents a paywall, the work is directed at a new public (namely a public that has not payed for the content).

What has now been clarified: Copyright holders must take effective (technological) measures to protect their lawfully uploaded and freely available works against linking/framing

In its recent decision (ECJ 9 March 2021, C-392/19 VG Bild-Kunst), the ECJ again dealt with the permissibility of frames. It examined whether the embedding of third-party content from a website on which this content is freely accessible (with the consent of the rightsholder) is permissible where that embedding circumvents measures adopted or imposed by that copyright holder to provide protection from framing.

The ECJ ruled that under these circumstances (i.e. when such [technological] measures were adopted or at least imposed by the copyright holder), the embedding of third-party content constitutes an act of communication to the public, which requires the rightsholder's consent. If the copyright holder's intention expressed "in the language of the internet" (see BGH/German Federal Court of Justice 25 April 2019, I ZR 113/18, para. 35) to restrict their consent to a communication to the public to a specific group of users was ignored/rendered irrelevant, this would amount to an exhaustion of the right to communicate protected works on the internet (that is not provided for in the relevant legal provisions).

Yet, in order to ensure legal certainty (and the proper functioning of the internet), the restriction to communicate must be managed by effective technological measures,.

What remains unclear: Technical details

While the ECJ has clarified certain aspects of its previous case law, not all questions concerning the linking of copyright-protected works have been answered.

The ECJ left open which precautions qualify as "effective technological measures". Would, for instance, commands frequently found in robots.txt files, which website operators use to express their wish to restrict the use of their content, suffice?

Nevertheless, the ECJ appears to have clarified another technical detail (by omission): While Advocate General Szpunar in his Opinion proposed differentiated legal consequences depending on the type and functionality of the links (in particular simple links on the one hand and "deep links" on the other), the ECJ seems to prefer a uniform approach to all sorts of links.

In a nutshell / Practical to do's

• Copyrighted content that was legally published online and that is freely available may be shared via links (whether hyperlinks or frames) without the consent of the rightsholder (caution: such links may nevertheless be problematic under unfair competition law, if – for example – a misleading impression is created).
• Rightsholders who wish to restrict access to their works to users of one or more specific websites must implement or impose effective technological measures against linking/framing.
• If such effective technical measures are ignored/circumvented the link is considered a communication that requires the consent of the right holder.
• If copyrighted works were placed on the internet illegally, links to such works are "illegal" if the linking person knew or ought to have known that the link provides access to a work illegally placed on the internet – such knowledge is assumed if the linking person acts in commerce.

author: Anna Katharina Tipotsch and Dominik Hofmarcher