On 21 October 2014 the Court of Justice of the European Union ("CJEU") rendered an important decision regarding the embedded linking of copyright-protected works (C-348/13). The judgment answers the question raised by the German Supreme Court (Bundesgerichtshof) whether, in short, embedding constitutes a "communication to the public".
This question is important because, if the answer is yes, users wishing to embed third parties' works within their own websites would have to obtain permission from the relevant copyright owners. In the Netherlands this was indeed the case, with the District Court of The Hague in 2012 ruling that embedding constitutes copyright infringement (ECLI:NL:RBSGR:2012:CA0291). Although the court acknowledged that the case raised questions as to the characterisation of embedding, it did not want to prolong the proceedings in view of the urgent interest invoked by the plaintiff.
What is embedding?
Embedding is a very popular way to enrich a website with audio or visual media. Via embedding, e.g. a video hosted on a third-party website (such as YouTube) can be displayed on one's own website. From a technical point of view, embedding requires merely the addition of a small (HTML) code linking to that video, enabling the end user's web browser to display the website and the video as an integrated whole. From an end-user's perception however, the result is quite striking as the (copyright protected) video seems an integral part of the website viewed.
Background BestWater case
BestWater International GmbH ("BestWater") manufactures and sells certain types of water filtering systems. For promotional purposes, BestWater had a short video clip made about water contamination. The video ended up on YouTube, despite BestWater's claim that it had not consented to this. The defendants, independent sales representatives of a direct competitor of BestWater, displayed this video on their websites by (the technical) way of embedding the YouTube video. Visitors could therefore play the video from the YouTube server while remaining on the sales representatives' websites: it appeared to such visitors that the videos were being played from those websites.
BestWater took the position that the sales representatives were making the copyright-protected work available to the public and were therefore infringing BestWater's copyrights, pursuant to (the German implementation of) Art. 3 of the Copyright Directive (2001/29/EC). This position was shared by the first instance court, but overturned on appeal. BestWater then took the case to the German Supreme Court, which decided to refer a question to the CJEU.
Referring to its established case law (SGAE/Rafael Hoteles, C-306/05 and Organismos Sillogokis, C-136/09 and ITV Broadcasting, C-607/11), the CJEU explains that a (new) "communication to the public" is a communication which is made by different technical means than the initial communication or which is directed to a new public (i.e. a public that was not taken into account by the copyright owner when authorising the initial communication to the public).
As the technical means in the current case do not differ (which the CJEU considers with reference to Svensson (C-466/12), which concerned hyperlinking), the CJEU only had to establish whether the communication on the sales representatives' sites was directed to a new public. Pursuant to the Svensson decision, there is no communication to a new public if the copyrighted work is already freely accessible for all internet users at a website, even when "the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site". The CJEU applies this finding to the present matter and rules that this is (exactly) what characterizes the "framing technique" in question, in which a website is divided into multiple windows/frames containing components of other websites (without the end-user being able to see the original environment of that component).
Interestingly, the court observes (para. 16) that the "new public" requirement will in particular not be met if the work is already freely accessible on another website with the consent of the right holder; however, according to para. 4 of the judgment, BestWater argued that the film had been made accessible on YouTube without its consent (but the CJEU seems to assume the contrary, see para. 18). It is slightly concerning that the wording "with the consent of the right holder" is not included in the CJEU's answer to the question referred to it (end of decision; see also para. 19).
In any event, the CJEU's ruling is: the embedding of a publicly accessible work does not meet the test for a (new) communication to the public and therefore does not constitute copyright infringement.