THE INSERTION OF CONTENT THROUGH THE FRAMING TECHNIQUE What you should know and the latest CJEU jurisprudence to the case

7 April, 2021
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Intellectual property
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Irene Moneo


The interpretation of article 3 of the Directive 2001/29/EC about whether it is considered an act of public communication making available to the public, by a third party, a link to a content which is protected by intellectual property and published in another website, has followed the direction of the interpretation done by the CJEU in the notorious cases of SEVENSSON and GS MEDIA.

In SVENSSON’s case the high court declared that there’s no act of communication to the public when the content driven by the link has been made available to the same public whose link is being provided to. On the other hand, in GS MEDIA’s case, the high court declared that there is an act of communication to the public when under these same circumstances the original content has been made available fraudulently and having the link a lucrative purpose.

Related to this same article of the directive, last 9th of March 2021, the CJUE (case C-392/19: VG Bild-Kunst vs. Stiftung Preussischer Kulturbesitz) ruled on the insertion of works in website through the framing technique. Specifically, the high court was asked whether the insertion through the framing technique in the website of a third party of a work which is available in another free access website with the consent of the owner consists on a communication to the public, when this is done avoiding the protection measures against framing adopted or imposed by the rights holder.

The framing technique consists on dividing an internet page into several pieces and showing in one of them through a clickable link or an embedded internet link (inline linking) an element that comes from another page so as to hide from the users of that webpage the background where this element belongs to.

In this direction, the CJUE pays attention to article 6 of Directive 2001/29, which states that “Member States shall provide adequate legal protection against the circumvention of any effective technological measures” and by which it is recognised to the rightsholders their right to public communication through the establishment of technological measures after their availability on the internet.

As a consequence of this statement, the high court concludes that when the copyright holder has adopted or imposed to his or her licensees the use of restrictive measures against framing with the purpose of restricting the access to their work from a webpage different from theirs or their licensees, the initial availability in the webpage of origin and the secondary availability done through the framing technique consist of different communications to the public and therefore each one of public communications must have the authorization from the right holder.

After all, by using restrictive measures against framing, what the rights holder is declaring is that the public authorized is the one of the webpage where the work was made available to the public initially. Otherwise, as indicated by the CJEU, it would be found that making a work available to the public to an unrestricted public would be equivalent to establishing a rule of exhaustion of the right of public communication.

As a conclusion, inserting through the framing technique in a webpage of a third party works which are protected by copyright that have been made available to the public in another free access webpage legally, if this insertion has been done avoiding the protection measures against framing adopted or imposed by the rights holder, this act consists on a communication to the public.

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C-392/19Directiva 2001/29FramingGS MEDIASVENSSON

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