European Union: the legality of a YouTube video integrated into a third party site (Framing)

The Member States of the European Union are particularly committed to copyright protection. However, the European Union based on free market principles, has lately relaxed its protective stance. In this regard, the Order of the Court of Justice of the European Union (CJEU) of October 21, 2014 addressed the issue of the framing. This technique involves incorporating a web page of a site within another site through a frame. The purpose of framing is to increase the number of connections automatically.

In Germany, the company BestWater had produced a commercial which was later uploaded on YouTube without its authorization. The video was taken up by two independent commercial agents to promote the products of a competitor. BestWater filed infringement proceedings, demanding the termination of the broadcast. Its claims were rejected by the German lower courts on the grounds that the work, i.e the video, was already disclosed to the public as a result of its first broadcast on YouTube. Consequently, a new communication to the public, using the same technical medium, cannot be described as a communication to a new public. BestWater appealed to the Federal Court of Justice (Bundesgerichtshof), which encountered a difficulty with the interpretation of Directive 2001/29 on copyright and related rights. Indeed, Article 3§1 of the Directive requires, in principle, permission of the copyright holder, from the time that there has been communication to the public.

The German Federal Court then referred the following preliminary question to the CJEU: “Can the fact that the work of another person made available to the public on a website is inserted in another web site under conditions such as those of the main proceedings be described as ‘communication to the public’ within the meaning of Article 3, paragraph 1, of Directive 2001/29, even where the work in question is not transmitted to a new audience or communicated through specific technical means different from that of the original communication.” In other words, what happens when the said video is embedded in a third party site? Is the criterion of the “new public” met and is a new authorization of the right holder required?

To determine the issue, the ECJ drew inspiration from the Svensson case dated February 13, 2014 concerning Internet links. The Court held that embedded videos cannot be described as “communication to the public (…) to the extent that the work in question is not transmitted to a new public or communicated through a specific technical means different from that of the original communication.” Thus, if the right holder initially allowed the video to be uploaded on YouTube, they cannot prevent the “embedding” on third party sites. Otherwise, all Facebook users who share videos with their “friends” would have incurred liability, with potentially chaotic proceedings as a result. Moreover, from another point of view, the framing would thus enable appropriating the work of another person while avoiding the scope of provisions regarding reproduction rights. One can raise the question of how fair this technique really is, too.

This decision regarding framing has reinforced the case law of the Court of Justice which is already well settled with respect to hyperlinks.