Advocate General Szpunar held in the case of VG Bild-Kunst v Stiftung Preußischer Kulturbesitz that "automatic" links require authorisation of the copyright holder in the work, but "clickable" links do not, even if anti-copying measures are circumvented.
Stiftung Preußischer Kulturbesitz ("SPK") operates a digital library containing links to digitised content stored on the websites of various organisations. VG Bild-Kunst is a German copyright collecting society. The parties negotiated a licence agreement for use of the catalogue of works. As part of the agreement, VG Bild-Kunst sought to include a provision requiring SPK to apply effective technological measures against the framing by third parties of the thumbnails of the protected works. SPK commenced proceedings on the basis that such a restriction was unreasonable, and the question was eventually referred to the CJEU.
AG Szpunar distinguished two types of links: "automatic" and "clickable".
Clickable links are those which display embedded copyright protected works from other websites only when actioned by users, e.g. by clicking on them. According to the AG, these links do not require the authorisation of the relevant copyright holder, as authorisation is deemed to be given when the works are initially made available on the internet. He went even further and opined that the same applies even where embedding these links circumvents technological protection measures against framing. In short, the AG argued that clickable links do not communicate the work to a new public. Rather, they communicate the work to the same public already targeted by the hyperlinked website.
Automatic links are those which automatically display the embedded copyright protected works from other websites; there is no need for further action by users. According to the AG, these links do require authorisation of the relevant copyright holder. He argued that automatic links communicate works to a public which was not initially considered by the copyright holder when making the work available. Indeed, these links give the embedded copyright protected works the appearance of integral elements of the website. As a result, users are unlikely to be aware that the works are hosted on a different server; the link to the work’s original website is severed.
Importantly, the AG did concede that exceptions such as quotation, caricature, parody and pastiche under the InfoSoc Directive may apply to the requirement of copyright holder authorisation for automatic links.
Its main implication (set out above) aside, the AG’s opinion also appears to limit the scope of the “public” as defined in case law. Indeed, previous cases assess, in relation to copyright-protected works made available on the internet, the relevant public as any and all internet users. According to the AG, the relevant public is rather that which is likely to access the specific website on which the work is fixed, including by way of hyperlinks.
Naturally, the AG’s opinion is just that. The CJEU has yet to give judgment.
Where those automatic links lead to works protected by copyright, there is, from both a technical and a functional point of view, an act of communication of those works to a public which was not taken into account by the copyright holder when the works were initially made available, namely the public of a website other than that on which that initial making available of the works took place.