BestWater: is it legal to embed videos online?

14 November 2014

Iona Silverman provides commentary on the recent European Court of Justice (ECJ) decision in the BestWater (Case C-348/13) and where this leaves case law regarding linking, framing and embedding content on the Internet.

 

Following on from our post back in June, Linking: looking past Svensson, this post focuses on the recent European Court of Justice (ECJ) decision in BestWater (Case C-348/13) regarding embedded videos (available in French and German, but not yet in English).

In Svensson the court considered linking and framing, and held that providing links does not constitute communication of the underlying works to the public, as these were freely available online; thus, providing links does not communicate the works to any ‘new public’.

The question in BestWater was similar:

"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 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 short, does embedding a video constitute communication to the public? The ECJ held that in order to constitute communication to the public, it is necessary either to communicate a work through a different specific technical means from the original communication or to communicate the work to a new public. The phrasing of the question in BestWater may have influenced this finding. It seems that in BestWater, the ECJ conflated its earlier decision in TVCatchUp (where it had held that retransmission of a broadcast over the Internet constituted a communication to the public because the specific technical means of communication (ie, broadcast versus Internet) differed) with its decision in Svensson (where it relied on the ‘new public’ argument). While this conflation confirms that the law is valid in both cases, it brings no further clarity as to how to determine which argument applies in any given case.

In the remainder of its decision in BestWater, the ECJ applied the law as set out in Svensson, holding that embedding videos (ie, enabling users to view videos hosted on a different third-party website) does not constitute a communication to the public if the videos are already freely accessible online.

The court further held that inserting a protected work that is freely available online onto another website "by way of a link, using the framing technique, such as that employed by BestWater", is not a communication to the public if that work is not communicated to a new public or by a different specific technical means.

The outcome of this decision is not unexpected, as on its face it is merely an extension of Svensson. The reference to different technical means reminds us that while the TVCatchUp decision created equally good law, it is both helpful and confusing. However, the real problem with this decision is that by failing to consider that the technology behind embedding a video is different from that used for linking and framing, the ECJ has avoided answering two basic questions:

• Is embedding a video different from linking to a video?
• Does it make a difference if the content linked to and embedded in is infringing?

The ECJ’s decision has thus created more questions than answers.

The result is at best a lack of clarity about the law and at worst inconsistent law. For instance, consider the fact that this decision seemingly makes it legal to embed a news video on a social media site. However, it is illegal to use an article's headline or to post a short snippet of that article on the same site (see the Court of Appeal's decision in NLA v Meltwater). The law has evolved in such a way that the principles behind the online application of reproduction rights appear at odds with those associated with the right to communicate with the public.

I say ‘seemingly’ above because, absent further clarification, those seeking to embed videos should ensure that:

• the embedded video is freely available on the other platform to the same extent that it is available on the site on which it is embedded; and
• when embedding a video, the means of consumption of the video are not altered from that of the original platform.

The ECJ's decision in Case C-279/13 C-More Entertainment (regarding linking to infringing content) is hotly anticipated in the hope that it may provide more answers. It seems likely that we will see another reference to the ECJ on the broad issue of linking before long.