In Belgium, the largest collecting society for music and movies, SABAM, is calling for payment of copyright fees from people embedding YouTube videos on their websites.
In its Svensson and Bestwater decisions, the Court of Justice of the European Union (“CJEU”) decided that linking to or embedding publicly accessible works does not as such constitute a communication to the public, unless (i) a new public is reached or (ii) security measures protecting the copyrighted works are infringed. There can be a new public according to the CJEU, e.g. if the copyright-protected work is no longer accessible in the original source or if the work is made accessible to viewers that were not allowed access to the original source.
SABAM argues that it granted a licence to YouTube merely to use copyright-protected videos for personal and non-commercial use. If, for instance, a blogger links to or embeds the video and their blog is sponsored and for commercial use, SABAM is of the opinion that this use exceeds the scope of the licence with YouTube and therefore the blogger would have to pay copyright fees. Apparently according to SABAM, exceeding the scope of the contract with YouTube by a third party to that contract can qualify as a copyright-relevant act and a communication via the internet to a new public. It has to be said that the notion of “new public”, which is not in any legal act but has been created by CJEU, is somewhat blurry. In our opinion, linking to or embedding publicly accessible copyright-protected videos on a website, and so offering a new product or service with its own economic value, aiming to explore new market share (“new” in comparison with YouTube users) and generating advertising income, could constitute a communication to a new public of publicly accessible copyright-protected works for which copyright fees could be due. The simple fact that a blog contains a publicity banner is however not sufficient in our opinion.
In any case, as the licence contract between SABAM and YouTube determines that the payment to SABAM depends on the number of video views, and clicking on an embedded video on a website also counts as a YouTube video view, it is clear that SABAM cannot be entitled to request payment from the embedder without accordingly reducing the amount it requests from YouTube. Otherwise, it would be claiming double payment for only one click on the same video.