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Legal marketing: when is framing allowed?

Framing is a particular type of link, which consists of incorporating content from a third website into your website through a frame. It must be distinguished from other types of links such as surface linking and deep linking.

Surface linking is a clickable link that redirects the user to the home page of a third site, while deep linking is a clickable link that redirects the user to a specific internal page other than the home page of a third site.

These practices, while facilitating internet browsing, sometimes risk entering into conflict with the copyright on the linked works (text, images and videos). The European Court of Justice has ruled several times on the subject following several references for preliminary rulings raised over time by the national courts of the Member States of the European Union.

In particular, the EU Court recognized the legitimacy of surface linking and deep linking provided that such practices did not make the work available to a new audience and that access to the linked content was lawful (C-466/12 Svensson / Retriever Sverige AB). For profit-making operators, the EU Court has also placed the additional subjective requirement of the absence of fault in "linking" to content published without the author's authorization with the burden of proof being borne by the operators (C-160 / 15 GS Media / Sanoma).

As regards framing, the EU Court ruled in 2014 in C-348/13 BestWater International, indicating that the practice of framing is legitimate if it concerns works freely available on a website accessible to the public.

However, in 2018 the EU Court in C-161/17 Land Nordrhein-Westfalen / Dirk Renckhoff, specified that authors, even on the web, have a precautionary right that allows them to prohibit the communication to the public of their work. in contexts other than those originally authorized. The case involved a photographer who authorized the operators of a travel website to post one of his photos on their website. The photo was freely accessible to the public and not subject to any restrictive measures. A pupil of a school in the Land of North Rhine-Westphalia, Germany, had downloaded the photo to illustrate a school project. The latter was later published on the school's website. The photographer has taken legal action against the school for violation of his copyright, claiming that he has granted a right of use only to the operator of the travel website.

Most recently, in 2021, the EU Court returned to rule on the legitimacy of framing in case C-392/2019.

The request for a preliminary ruling was made in the context of a dispute between VG Bild-Kunst, a copyright management company in the field of visual arts in Germany, and Stiftung Preußischer Kulturbesitz (SPK), a German foundation for cultural heritage, regarding the refusal of VG Bild-Kunst to enter into a license agreement with SPK for the use of its catalog of works without the inclusion of a clause that obliges the latter, as licensee, to implement, when using protected works and materials covered by said contract, effective technological measures against framing by third parties of the protected works and materials.

In this case, the EU Court ruled that framing is not allowed if technical measures are put in place to protect the embedded work, representing an act in violation of the copyright on the linked contents. In these cases, it will therefore be necessary to obtain authorization from the holder of the rights.

Avv. Lifang Dong and Avv. Chiara Civitelli

The content of this article does not constitute legal advice, but has an informative function. For personalized legal advice, contact the firm by e-mail or by phone +39 06 916505710. © Dong & Partners International Law Firm, All rights reserved

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