- Category: March 2015 - Video Advertising
The European Court of Justice recently decided that the embedding of a protected work in a web page by embedding - also called framing - in any event, constitutes no copyright infringement, if the protected work has previously been made accessible by the copyright owner in the public domain.
In other words, since embedding videos (e.g. from YouTube) is not a discrete way of usage, the court decided that it is not considering it as an infringement of copyright.
The plaintiff was a manufacturer of water filters that had uploaded a video on YouTube, which the competition included on their homepage. The company eventually sued for copyright infringement on grounds that only the author has the right to make the video public.
Around one and a half years ago, the Federal Supreme Court gave the case to the European Court of Justice and since then the judgment has been awaited eagerly, since it has a major impact on the handling of all kinds of “embedded content”.
The reasons for the judgment
A communication to the public, in terms of the guidelines, is existent only if a protected work would be using a technological process that is different from the method used so far, or reproduced for a new audience, the European Court of Justice defined. A new audience means in this case a group of people, which the copyright owner did not have in mind at the original publication of the work on the net.
In any case, there is no new audience if the work is freely available on the website referred to on the Internet link with the permission of the copyright owner. In this case, the owner of the copyright was thinking about all users already when releasing the video publicly on the Internet.
The significance of the judgment
The recent decision of the European Court of Justice has initially triggered positive reactions and seen as a general permission of the so-called "embedding". By now, however, there are growing voices that recommend not to just act on the assumption of a general permit. In addition, unfortunately, the decision of the Court of Justice is in some points somewhat unclear and ambiguous.
Although in the present case it was disputed whether the video was entitled to be put on YouTube, the court justifies its decision several times with a reference to a previous publication authorized by the copyright owner. Exactly that is what makes it unclear whether it is a copyright violation or not, if the protected work has never been made freely available online by the copyright owner.
Nevertheless, the decision provides a degree of legal certainty. In any case, if the user can be sure that the linked or embedded "source" has been released with the permission of the copyright owner, a copyright infringement cannot be assumed, especially if no other technical process of dissemination is offered and therefore no "new" audience - for example, by bypassing a login process – has been opened up.
For the user, however, the uncertainty of not being able to make sure that the embedded source was actually triggered with the permission of the copyright holder, still remains.