On 21 October 2014, the Court of Justice of the European Union (CJEU) issued its decision in the BestWater case (C-348/13) following a request for a preliminary ruling from the German Supreme Court.
An official version of the decision is available here (in French and German only).
The case concerns the use of a 2-minute long promotional video clip about water pollution, created by BestWater International, which produces and sells water filters. The video appeared on YouTube, apparently without knowledge or authorisation by BestWater, and was used by a competitor, who linked to the clip by means of “framing”, thereby making the clip visible on its own website. BestWater claimed copyright infringement of its clip and sought an injunction from the German courts. The defendant had meanwhile voluntarily ceased the use of the clip and the procedure was therefore limited to the restitution of damages.
"Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website, in circumstances such as those in the main proceedings, constitute communication to the public within the meaning of Article 3(1) of the 2001 Copyright Directive (2001/29/EC), even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?"
In the Svensson case (C‑466/12), where the European Court ruled on (mere) hyperlinking, the question of whether the link created the impression that the framed work would be appearing on the third party’s website (thus concealing its original website) was held as not relevant. The Court held the decisive issue to be the same in the BestWater case, prompting it to answer negatively.
The framing of a work (or other protected material) which is freely available on a publicly accessible website is thus allowed, unless it is directed at a different audience than originally intended or is communicated (to the same audience or not) by using different technical means.
The Court's decision raises several issues and questions remain unaddressed.
First of all, one would have hoped that the Court had seized this opportunity to differentiate its reasoning in the Svensson case and clearly distinguish between (mere) hyperlinking and framing. In the Svensson case, the Court determined that any form of hyperlink is in principle subject to the communication to the public right unless there is no “new public”. This reasoning seems very far-reaching given that a hyperlink is, as such, no more than a technical tool to switch from one URL address to another. By contrast, the framing technique (in particular of audio or video streams provided by another website) is markedly different from hyperlinking, because in this case the end-user is not directed to the webpage where the original content is placed. That makes this type of communication more clearly an economic form of exploitation, which is a crucial distinction. This follows on from the Court's decision in the TVCatchup case (C-607/11), where for the question whether the third-party’s re-use of a broadcast programme was a communication under Art. 3 of the 2001 Copyright Directive the question of a "new public" was not held relevant.
Moreover, it is difficult to accept the idea that a general allowance for embedding or framing protected material found elsewhere on the Internet would create the possibility of unauthorised usage, going far beyond the boundaries of any limitation or exception under copyright. In particular, the lawful “quotation” of another’s work is subject to relatively strict conditions. These are tested by the special characteristics of the Internet, but the careful legislative balance underlying the quotation exception is bypassed entirely if third-party use is simply not held to be a relevant act of communication. It would have been more appropriate to consider that embedding or framing are always copyright relevant communications and lawful only to the extent that their use is in line with the requirements of the quotation exception.
Secondly, the question of whether embedding copyrighted videos available on the Internet would ever be tantamount to copyright infringement remains open in cases where the source video was uploaded without permission of the right owner.
In this particular context, it is remarkable that the Court recognised, but did not validate, the BestWater’s claim that it had not authorised the clip to be uploaded on YouTube, as this fact could, and arguably should, have been taken into account for the question of a “new public”. Also, the wording of the request for a preliminary ruling by the German Supreme Court explicitly referred to the given circumstances of the actual case. Did the Court wish to indicate that as long as the copyright owner had not ordered YouTube to take the clip down it was considered tolerated and thereby lawfully available for everyone’s free (embedding) use? And what if, though such a take-down order had been given, the clip re-appeared on YouTube or any other social network, as is often the case? It is difficult to imagine that the Court wished to suggest that the lawfulness of the first uploading of the original content is entirely irrelevant.
Finally, the lawfulness of embedding copyright-protected content subject to conditional access, e.g. the website hosting the source video was protected by a technological measure designed to prevent or restrict access, was not addressed. The C More Entertainment case (C-279/13) which involves such situation is still pending before the European Court.