Article 11 - Freedom of expression and information
Article 17 - Right to property
Key facts of the case:
Request for a preliminary ruling from the Bundesgerichtshof.
Reference for a preliminary ruling – Intellectual property – Copyright and related rights in the information society – Directive 2001/29/EC – Article 3(1) – Concept of ‘communication to the public’ – Embedding, in a third party’s website, of a copyright-protected work by means of the process of framing – Work freely accessible with the authorisation of the copyright holder on the licensee’s website – Clause in the exploitation agreement requiring the licensee to introduce effective technological measures against framing – Lawfulness – Fundamental rights – – Article 11 and Article 17(2) of the Charter of Fundamental Rights of the European Union.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that 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 authorisation 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.
18) The Bundesgerichtshof (Federal Court of Justice) is however uncertain as to the response to that question, having regard to the case-law of the Court in relation to the practice of framing (order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315) and to the freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in the digital context (judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 45), case-law which indicates that hyperlinks contribute to the smooth functioning of the internet and to the exchange of opinions and information, and accordingly it decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Does the embedding of a work – which is available on a freely accessible website with the consent of the right holder – in the website of a third party by way of framing constitute communication to the public of that work within the meaning of Article 3(1) of Directive 2001/29 where it circumvents protection measures against framing adopted or imposed by the right holder?’
49) Admittedly, it cannot be forgotten that hyperlinks, whether they are used in connection with the technique of framing or not, contribute to the smooth operation of the Internet, which is of particular importance to freedom of expression and information, enshrined in Article 11 of the Charter, as well as to the exchange of opinions and information on the Internet, which is characterised by the availability of incalculable amounts of information (judgment of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 81 and the case‑law cited).
54) If such embedding, by means of the technique of framing, without the copyright holder’s being able to rely on the rights laid down in Article 3(1) of Directive 2001/29, were to be permitted, the consequence would be that the need to safeguard a fair balance, referred to in recitals 3 and 31 of that directive, in the digital environment between, on one hand, the interest of the holders of copyright and related rights in the protection of their intellectual property, guaranteed by Article 17(2) of the Charter and, on the other hand, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and information guaranteed by Article 11 of the Charter, as well as the public interest, would be disregarded (see, by analogy, judgment of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 41).