In a judgment of 18 June 2018, case 24 U 146/17, the Berlin Court of Appeals (Kammergericht Berlin – Court of Appeals) held that collecting societies shall grant the right of use of their picture inventory as thumbnails even if these pictures can be ‘framed’ by third parties and the prospective licensee does not commit to prevent this use by technical means. This case will most likely now go to Germany’s Federal Supreme Court of Justice (Bundesgerichtshof – BGH).

Background

The judgment is based on a legal conflict that occurred in 2013. A German collecting society and its prospective licensee negotiated the granting of the right to use works of visual arts on the licensee’s website as well as websites of the licensee’s partners. In 2014, when a license agreement was almost concluded, the collecting society refused to grant the licensee rights to use because of an earlier judgment of the Court of Justice of the European Union (CJEU) on framing (CJEU, BestWater International, judgment of 21 October 2014, case C-348/13). This judgment stated that framing a protected work that was made available on a publicly and freely accessible website did not constitute communication to the public under European copyright law.

The collecting society did not enter into the agreement as the licensee did not agree to provide appropriate technical measures to protect against framing on its website. The collecting society argued that authors shall be protected against the framing of copyrighted pictures on third parties’ websites without remuneration.

The licensee brought an action for a declaratory judgment in front of the Berlin Regional Court (Landgericht Berlin, 15 July 2017, 15 U 251/16) in 2016 on whether collecting societies may impose the obligation that licensees implement technical measures to prevent framing. The Berlin Regional Court dismissed the action as inadmissible in the first instance.

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