By Heini Järvinen

On 21 October 2014 the Court of Justice of the European Union (CJEU) ruled that embedding copyrighted videos is not a violation of copyright, even when the source video is uploaded without the permission from the rightsholder.

The case, dealing with a dispute between a water filtering company BestWater International and two independent commercial agents who were accused of embedding their promotional video without permission, was referred to CJEU by a German court.

The video had been uploaded to YouTube without BestWater’s permission, and it was embedded by the two men on their personal websites through a frame, as is commonly done with YouTube videos, supposedly to point out their disagreement with a statement it made.

In its ruling, CJEU argues that embedding a file or video is not a copyright infringement, as long as the message is not altered or communicated to a new public. As the promotional video in question was already available on the video sharing platform, embedding it is can’t be considered as communicating it to a new public. The decision does not change the copyright breaching status of the original upload, but it ensures that Internet users are protected from liability in case they embed copyrighted contents from other websites.

“The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [the EU Copyright directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication,” the ruling reads.

The ruling was based on an earlier decision in the Svensson case, where hyperlinking to a previously published work was ruled not to be infringing copyright. Together, the two cases give a clear direction for the future copyright cases in the EU.

The EU’s Copyright in the Information Society Directive is now severely out of date. The initial proposal for a Directive was made by the European Commission in 1999, six years before YouTube was launched. As a result, the Court of Justice of the European Union has been forced to find ever more inventive ways of implementing the legislation. It is expected that the Directive will be revised within the next two to three years.

CJEU rules on whether ‘framing’ amounts to copyright infringement (30.10.2014)
http://www.lexology.com/library/detail.aspx?g=efec43a8-9444-4399-8ca2-5da8b893b948

Embedding is not copyright infringement, EU court rules (25.10.2014)
http://torrentfreak.com/embedding-copyright-infringement-eu-court-rules-141025/

An “embed” link isn’t a new infringement, says EU Court of Justice (27.10.2014)
http://www.theregister.co.uk/2014/10/27/an_embed_link_isnt_a_new_infringement_says_eu_court_of_justice/

Video embeds not a copyright violation, EU court says (29.10.2014)
http://www.justicenewsflash.com/2014/10/29/video-embeds-not-a-copyright-violation-eu-court-says_20141029133247.html

Courth ruling (C-348/13) of the BestWater International GmbH vs. Michael Mebes and Stefan Potsch
http://curia.europa.eu/juris/document/document.jsf?text=&docid=159023&pageIndex=0&doclang=DE&mode=lst&dir=&occ=first&part=1&cid=382141

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