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The European Court of Justice (ECJ) drafted a new page of copyright-related Internet liability rules holding that the embedding of a video from a videosharing platform on the different site without the consent from the right holder is not a copyright breach.
The decision on embedding
The dispute arose from a claim brought by BestWater International against a competitior that had published on its site the advertising videos of BestWater’s products without its consent.
The ECJ did not share BestWater International’s view and held that since such type of videos are already made available to the public when published on videosharing platforms, their embedding or framing on a different website does not breach copyrights and this is valid even when the embedded video itself is in breach of copyrights.
This reasoning applies provided that the video
- is not either altered or amended;
- is not made available to the public for the first time;
- is not communicated through means different from those used for the first communication and
- is not made available to a “new public” such as in cases when the video was accessible only to a restricted number of users and then is made available to the general public by a third party.
The court precedent on linking
The ruling follows the same principles set forth by the European Court of Justice in relation to linking activities in the Göteborgs-Posten case.
In both cases, the European Court of Justice adopted the principle under which copyright Internet liability rules should not apply to both the video embedding and the hyberlinking performed without the consent of the right holders since such conducts do not represent an “act of communication to the public” that can be restricted under copyright laws.
The reason of such approach is that embedding and hyperlinking of copyright protected works does not communicate the works to a new public since the works are already freely available.
The Italian scenario
This is an interesting decision for also the Italian market if it is considered that during the last summer the Italian Society of Author and Editors (SIAE) had attempted to require the payment of its license royalties by blogs and websites showing movie trailers from other sites. The above mentioned decision is likely to be used in the future to challenge such type of claims.
I wonder what the next steps of the reasoning above will be in other sectors and whether European regulators will attempt to expand the same principles to other areas. And as usual feel free to contact me, Giulio Coraggio to discuss. Also, if you want to receive my newsletter, please join my LinkedIn Group or my Facebook page. And follow me on Twitter, Google+ and become one of my friends on LinkedIn.
