European High Court Rules Embedded Videos Not Copyright Violation

December 29, 2014

A visitor is seen at the You Tube stand during the annual MIPCOM television programme market in CannesIn a recent decision, the Court of Justice of the European Union determined that offering a video created by another party by embedding that video in a personal website is not necessarily a violation of European Union copyright law.  Given the widespread availability of videos through platforms such as YouTube, this ruling has significant potential implications.

The case in question arose in Germany.  The water filtering company, BestWater International brought the case in the German courts against two individuals who work as independent agents on behalf of a company that competes with BestWater.

The defendants made use of a promotional video that BestWater offered to the public through YouTube.  They embedded that video in their personal website.  They made use of the video without permission from BestWater.  BestWater argued that embedding the video without authorization constituted a violation of European copyright law.  The German court asked the Court of Justice to evaluate that legal claim.

According to the German court, the EU directive on copyright law does not specifically address the issue of embedded videos.  The Court of Justice examined that issue and concluded that, under the facts of this German case, the embedding of the video did not violate the EU copyright directive.

The Court of Justice focused on a few specific facts in this case to support its conclusion that the embedded video was not a copyright violation.  In particular, the Court noted that the video had already been presented for general public review by BestWater.  The defendants did not offer the video to a new audience.  BestWater made the video available at no charge to the entire public through YouTube, and the defendants re-circulated the video to that same audience through their website.

The Court also emphasized the fact that the defendants did not alter the content of the video.  The video was presented in exactly the same form as when it was first presented by BestWater.

In addition, the Court apparently relied on the fact that the material was embedded through use of a link to the original material and the use of framing technology to present the video.  The Court did not address the issue of other potential methods for embedding video content online.

In this case, the Court apparently relied heavily on its previous decision in the Svensson case.  The ruling in that case authorized hypertext links to copyrighted material without the permission of the copyright owner.  Mere linking to copyrighted material does not, according to the Court, constitute a copyright law violation.

An interesting open issue is the extent to which this ruling will protect parties who use links and framing technology to embed copyrighted material that was originally obtained through piracy.  It is likely that many parties use links and framing technology to embed videos and other copyrighted material that may have been made innocently available by multiple parties but which was originally pirated.  It remains unclear what impact this ruling will have on that type of case in the future.

The ruling by the Court of Justice in this case seems to empower users of copyrighted material substantially.  It also appears to interpret European copyright law in a manner which is notably more user-friendly than that generally applied to copyright law in the United States.