The Brussels copyright package must include framing!

Bild-Kunst had already reported extensively on the “framing of content” problem in its November 2015 newsletter: this is a huge problem that the ECJ has exacerbated with its case law on the making available to the public of protected works on the internet, particularly with regard to images. A year has now gone by, and the situation has not improved: in a further decision, the European Court of Justice has confirmed that the use of protected third-party works through inclusion on a proprietary page (framing) is permitted if the original communication on the internet was made with the consent of the author.

The Deutsche Digitale Bibliothek (German Digital Library, DDB) has since taken legal action against Bild-Kunst: Bild-Kunst had made the licensing of image works on the website of the DDB and other memory institutions dependent upon technical protection – of whatever kind – being put in place to prevent framing. The DDB counters that the expense of such technical protection is too high. As trustee for the rights of its members, however, Bild-Kunst cannot license any use that would lead to the works and the rights of its members being essentially devalued. According to case law of the ECJ, after all, anyone can by the simplest means use the illustrations on the website of the DBB for their own purposes – even advertising! – and the authors just have to tolerate this. In online law, the initial licensing of the relevant works to the DBB would be more or less exhausted.

This legal action shows all too clearly that there can be no solution for cultural use on the internet if the case law of the ECJ is not corrected. This must now be done within the copyright package of the European Commission, because the new reliefs provided in the draft directive for institutions of cultural memory cannot be implemented without a solution for framing. The (supposed) permissibility of framing is a consequence of the interpretation of the 2001 EU Directive on copyright in the information society, which is founded on an erroneous understanding of linking: although the ECJ rightly assumes that links on the internet are the most important technique for referencing other content, in its consideration of framing it throws the baby out with the bathwater.

Framing is more than linking: in framing, a person adopts a third-party work as their own, incorporates it into their own page and derives a separate financial benefit from this.
That is why it is important, when discussing the permissibility of framing, always to make it clear that “normal” linking is not to be regulated! References to other sources on the internet must be just as possible as a footnote in a printed text.

The EU directives proclaim their strong protection of authors, yet case law of the ECJ on framing hugely devalues this protection – contrary to the intention of the legislators.
Bild-Kunst is therefore demanding clarification that every communication of a third-party work on a website constitutes independent use even if this work is uploaded from a third-party server rather than a proprietary one. With such a clarification, Bild-Kunst would have no problem granting licences to archives, museums, libraries and other memory institutions for the use of image works on the internet.

The framing problem affects not just visual arts, but the entire image sector. At European level, the EVA (European Visual Artists) and the CEPIC (Coordination of European Picture Agencies) are actively seeking to have the case law corrected by European legislators.

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