Last week, the Court of Justice of the European Union (CJEU) handed down an important verdict (pdf in German) by deciding that embedding videos on a website without permission of the copyright holder of the video is perfectly legal. This ruling follows on an earlier ruling (in Dutch – English version here) in which the CJEU has ruled that linking to copyright protected content does not require authorisation from the copyright holders either. Both rulings are important clarifications that defend fundamental building blocks of the Internet against attempts from rights holders to extend the control over copyrighted works by undermining the ability of the public to interact with information online.
Last week’s verdict resulted from ++CJEUThe Court of Justice of the European Union is the highest court of the EU and works by answering questions that are referred to the court by the courts of the EU member states. Generally these questions center on interpretation of EU law. that were asked in Case C-348/13 BestWater International GmbH v Michael Mebes & Stefan Potsch. The dispute centered on a promotional video from Bestwater that was uploaded to YouTube without their permission. The YouTube video was then embedded on the personal website of the two defendants, and BestWater took them to court in Germany. BestWater argued that the defendants made the video publicly available thereby infringing their copyright. The Bundesgerichtshof (German Federal Court of Justice) subsequently asked the CJEU whether embedding videos amounts to “making available to the public” in the sense of Article 3(1) of the EU Copyright ++If this was the case then that would mean that Internet users can only embed videos after they have obtained the explicit permission to do so from the copyright holders..
In its ruling the CJEU decided not to consider the origin of the YouTube upload as relevant in this case (as the two defendants had nothing to do with it) but simply considered the act of embedding. Based on this, the court argued (unofficial translation from German original, emphasis added):
“… the embedding of a protected work which is publicly accessible on a website in another website by means of a link and using the framing technology, as was the subject of the main proceedings, by itself does not constitute communication to the public within the meaning of Article 3 (1) of Directive 2001/29 to the extent that the relevant work is neither communicated to a new public nor is it communicated using a specific technical means which is different from that of the original communication. (…) If and to the extent that this work is freely accessible on the website to which the Internet link points, the assumption must be made that the holders of the copyright have, when they permitted this communication, considered all Internet users as the public.”
The CJEU’s main reason in deciding this is the same as in the aforementioned hyperlinking case. It argues that something that has been published on the open Internet is not published anew when it is linked to from somewhere else on the Internet. Hyperlinks that allow websites to refer to other websites, videos, images and other types of files on the Internet are an essential building block of the Internet and it is very welcome that the CJEU seems to have recognised this.
This means that the CJEU confirmed yet again that the daily activities of millions of Internet users (publishers, bloggers, news organisations and social media users alike) do not require permission from rights holders. While this sounds like common sense, the fact that this issue has been repeatedly required the intervention of the EU’s highest court underlines the need for a modernisation of the EU’s rather outdated copyright rules.