Germany - Deutsche Digitalen Bibliothek v Verwertungsgesellschaft Bild Kunst, March 2024

Claimants: Stiftung Preußischer Kulturbesitz as sponsor of the Deutschen Digitalen Bibliothek (‘DDB’)

Defendant: Verwertungsgesellschaft Bild-Kunst (‘VG Bild Kunst’)

With decision from 9^th September 2021 the court ruled in favour of the defendant. The case was referred back to the Court of Appeal in Berlin for a new hearing and decision.

In March 2024, the Parties reached an amicable agreement to the effect that DDB does not have to take any technical measures against the “framing” of images by third parties for the works shown on its portals.

DDB brought proceedings against VG Bild Kunst in 2016, after negotiations on a licensing agreement between the parties had failed.

VG Bild Kunst, which administers the copyrights of its affiliated authors in works of fine art, entered into a contract with DDB for the use of its repertoire of works in the form of preview images. This contract however depended on DDB undertaking to apply effective technical measures to protect these works against framing by third parties.

The Regional Court initially dismissed the action as inadmissible. 

In response to an appeal by DDB, the Court of Appeal ruled in 2018 that VG Bild Kunst was obliged to make the rights of use available to DDB without the restriction on framing.

During the appeal to the German Federal Court of Justice, the legal question was referred to the European Court of Justice (ECJ). The ECJ ruled in 2021 that embedding works protected by copyright on the website of a third party, and made freely accessible to the public on another website by means of the framing technique, constitutes a communication to the public within the meaning of Directive (EU) 2991/29/EG.

DDB’s Claims

DDB argues that it can use the copyright works in the form of preview images without the technical prevention of framing. This is based on the following arguments:

• The clause in question constitutes an unreasonable condition of use for the company;
• The adaptation and financial costs would be disproportionate to the benefits;
• The use of the images by third parties for commercial purposes is unlikely due to the poor resolution of the preview images. Therefore, VG Bild Kunst would not suffer any significant damage;
• Any loss of revenue for copyright owners as a result of the possibility of framing should be compensated exclusively through remuneration and not through (technical) difficulties in use; and
• The proposed technical protective measures would have loopholes and workarounds.

VG Bild Kunst’s Defence

VG Bild Kunst defends the declaratory action by arguing that:

• The clause is intended to pursue the purpose of appropriate participation in any exploitation of rights;
• The possibility of framing creates the risk that copyright works are placed in a new context without consent by the owner;
• The framing technique is predominantly used by commercial users, who thus save themselves the cost of acquiring the rights of use against payment; and
• There are two simple options for technical protective measures against framing - the use of a so-called “framekiller” or the use of the so-called X-frame option.