The fight for frames (round 2) – BGH referral VG Bild-Kunst

Does the circumvention of technical protection measures against framing create a „new public“ and thereby infrige the right of communication to the public?
On this issue, IRDT director Prof. Raue comments on Kluwer Copyright Blog by giving an overview of the referral procedure in the case VG Bild-Kunst v Deutsche Digitale Bibliothek.
According to Raue, the ECJ will probably confirm the referred question and see the circumvention of technical protection measures against framing as a communication to the public.
„If right holders limit the referencing possibility by machine-readable means (which has disadvantages for them as this limits visibility on third-party platforms) they leave that referencing system. As the restriction is clearly comprehensible for other internet users it is no longer justified by the functioning of the internet to restrict the „high level of [copyright] protection“ (recital 9 InfoSoc Directive).