A significant percentage of the copyright cases to have come before the Court of Justice of the European Union (CJEU) in the last few years have concerned dissemination on the Internet - for example, "caching" (temporary storage for technological purposes), "linking" (from one webpage to another) or "framing" (embedding content from one webpage in a separate webpage - the linked content is "framed" by the original content of the website).

The CJEU considered framing in Bestwater [1] where it was asked whether embedding content that was freely available on a third-party website fell within the scope of the exclusive "communication to the public right" under Article 3(1) of the Copyright Directive [2] and, as such, required the prior authorisation of the right holder.

The facts of the case were that a promotional video created by Bestwater was uploaded to YouTube without, it is claimed, its consent. Once on YouTube the video was of course freely available to everyone to access. A competitor then framed the video on its own website for promotional purposes.

The CJEU ruled that there was no copyright infringement. In order for there to be an infringing act, the copyright work must be communicated to a "new public". As the content was already publicly available there was no communication to a new public. The position might be different, for example, if the content was initially available to paying customers but the paywall restriction was subsequently breached and the content made available to everyone.

This decision was consistent with the CJEU's earlier decision in Svensson, concerning linking via hyperlinks which we reviewed here.

There is now a sequel to the Bestwater case, the case having been referred back to the German Bundesgerichtshof. That court has put an interesting spin on the CJEU ruling. The video in question had originally allegedly been uploaded to YouTube without the right owner's consent. The German court said that "framing" was only permitted in respect of content that was primarily communicated to the public with the permission of the right owner – which had not happened in this case. As such, "framing" in this case could constitute an infringement – there is a live issue in the case as to whether there was actually consent.

Whether the CJEU shares this interpretation of its own decision should soon become apparent as there is a reference pending from the Dutch Supreme Court on this very question.  In the meantime, "framing" is only definitely permissible in respect of authorised content.