Copyright ruling begs question: Does embedding of fine artwork images online really harm artists?
Should libraries and museums stop secondary websites from republishing so-called ‘orphan’ works? Ellen Euler, professor for Open Access & Open Data in Germany at the University of Applied Science Potsdam, looks at a current case in point playing out in Germany.
A common problem in the current copyright debate is that it is based on assumptions, not on facts and proven contexts. The same applies to some legislative proposals. If authors or rights holders actually suffer damage when licensed images of works of fine art are embedded, then this would, of course, need to be counteracted within the framework of the copyright reform. However, the mere assumption that this is the case should not be sufficient.
A recent case where this issue was brought to the fore was between collecting society for visual artists, VG Bild-Kunst (Collecting Society for the Visual Arts), and the German Digital Library, Deutsche Digitale Bibliothek (DDB), an online portal that networks and makes the digital collections of German museums, archives, libraries and other cultural institutions accessible. Both have been disputing whether online platforms must technically prevent protected artwork images from being embedded on other sites.
According to the Berlin Regional Court, ‘that would be too much to ask’.
The aim of negotiations between the DDB and VG Bild-Kunst
The DDB began negotiating licences with the VG Bild-Kunst in 2013 in order to feature protected works on their platform. Their aim was to show these works on the DDB website, and also on cooperating cultural institutions’ websites. For example, the Berlinische Galerie could show Otto Dix's works on both the DDB and on its own website without having to create a separate licence agreement with the VG Bild-Kunst.
So-called orphaned works - works without clear rights ownership - would be protected by the agreement. This would allow, for example, archives to digitise posters with unknown authors and publish them on both the DDB and their own websites.
Such a contract was negotiated at the end of 2014, but it was never concluded.
In the interim, the European Court of Justice issued a ruling that concerned VG Bild-Kunst. The Court ruled that embedding (legal: framing) content on other sites is generally not relevant under copyright law. It is instead comparable to a link.
VG Bild-Kunst: ’Only those who prevent embedding receive licenses’
VG Bild-Kunst feared that artists would be expropriated of their rights if everyone could show their works by embedding them on their own pages. In order to protect their represented rights holders, VG Bild-Kunst requested to license to DDB only on the condition that they use technical means to prevent the content from being embedded on external pages. Such ’framing prevention technology’ is based on only providing images with a dynamic web address instead of a static one.
The DBB did not accept this condition.
In May 2016, DDB brought an action before the Berlin Regional Court against VG Bild-Kunst in order to clarify whether the collecting society may demand that the works it licenses become protected against embedding. Both parties wanted to clarify the question in principle (if possible up to the Federal Supreme Court, and if necessary also with the European Court of Justice) and have taken the legal dispute to court as a ’model case’ in which each party bears its own legal costs. However, the Berlin Regional Court initially rejected the complaint.
Embedding: No permission and no prohibition necessary
The Berlin Court of Appeal has now ruled that the action is admissible and has decided that VG Bild-Kunst must grant the DDB licences for its repertoire on visual arts, even if those may be embedded elsewhere (see judgment of 18 June 2018, 24 U 146/17).
Accordingly, embedding would not fall under copyright law even if the ‘technical protective measures’ demanded by the VG Bild-Kunst were circumvented. In any case, embedding would not constitute public communication if the original work had been published openly and was accessible to all internet users with the copyright holder’s permission.
Court states the anti-embed measures did not restrict access
Technical measures against embedding do not restrict the number of people who can access the protected work, only the number of those who can embed it. It is because of this that embedding is deemed not to reach a ‘new audience’. The required protection against embedding, therefore, does not affect any copyright-relevant acts.
According to the Court of Appeal, this would only be different if the numbers of viewers were already limited at the time of the original publication (e.g. with a paywall). If the works were freely accessible and legally published, the technology would not prevent unauthorised but permitted acts. Under such conditions, it would be disproportionate to oblige the DDB to implement such measures.
The decision of the Court of Appeal is not yet final; the appeal to the Federal Supreme Court has been admitted. Digital cultural heritage from cultural institutions and aggregating platforms in Germany will have to wait for a legally secure answer as to whether they have to protect their content against embedding.
While the outcome is still unclear, the dispute over embedding clearly shows how much the current law hampers the accessibility of art and culture on the internet.
The possible consequence of embed regulation
While the VG Bild-Kunst will continue to argue for embedding regulation and further protections if embedding is subject to licensing, this would have far-reaching consequences. For example, the content could no longer appear in image search engines that use this technology, nor in Europeana Collections. And when a museum publishes images of works of art on social networks, users would no longer be able to share the posting without permission.
Proposing an experiment
While this case is still resolving, VG Bild-Kunst and its members could use the time until the fundamental clarification for an experiment to answer the fundamental question: Does the display of images of fine artworks online, where embedding is possible, really harm artists? Or is there actually a benefit if their works become part of the current and communicative memory? Does visibility increase the demand for high-resolution images and further licences?
By exploring these questions, the assumptions about the damage or benefit of embedding could be empirically proven. This kind of conversation is worth having, with the potential to benefit digital cultural heritage platforms globally.