EU Court: Embedding copyrighted videos that are freely available online does not constitute a copyright infringement

By Gabriel M. Lentner

On 21 October 2014 the Court of Justice of the European Union (“CJEU”) issued in an accelerated procedure (pursuant to Article 99 of the Court’s Rules of Procedure) an order in the case of BestWater International GmbH v Michael Mebes and Stefan Potsch (Case C-348/13). The accelerated procedure was possible since the CJEU considered that the question at issue as already been resolved from existing case law, notably Svensson (C-466/12). Nevertheless, the German Bundesgerichtshof requested a preliminary ruling asking the Court whether the embedding, within one’s own website, of another person’s work made available to the public on a third-party website constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (“Directive 2001/29/EC”).

Facts of the Case

The case at hand relates to a dispute between the water filtering company ‘BestWater International’ and two independent commercial agents working for a competitor. A short commercial video produced by BestWater was uploaded on YouTube (presumably) without the company’s consent. The two agents embedded this YouTube video on their website. BestWater claimed that by doing so the two agents had infringed its copyright.

The Findings of the Court

In mere 8 paragraphs the CJEU held that making available to the public another person’s work by means of embedding a YouTube video on a third-party website does not by itself constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29 insofar as the work concerned is neither directed at a new public nor communicated by using different technical means than in the initial communication. In other words, embedding videos, which are freely available on online platforms such as YouTube into one’s own website does not constitute a copyright infringement. Thus, the court’s finding clarifies that the embedding does not by itself constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29 since in such cases, the work concerned is neither directed at a new public nor communicated by using specific technical means that differ from that used for the initial communication.

Conclusion

This decision is consistent with the CJEU’s previous ruling in Svensson (C-466/12) in which it upheld the lawfulness of providing clickable links to works freely available on another website. Hence, cases where the work is communicated by the same technical means and not communicated to a new public (i.e. all Internet users could have free access to it) do not constitute an act of communication to the public as referred to in Article 3(1) of Directive 2001/29. This presupposes that the initial communication to the public (uploading on YouTube) was authorized by the rightholder. If the work concerned however is in fact directed at a new public e.g. works behind a paywall, for subscribers only, in login areas or has applied to it other technological measures designed to prevent or restrict acts not authorized by the rightholder, copyright rules would be infringed.

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