Last week we spoke about copyright infringement by hyperlinking and how, despite being thought of as an easy way to use copyright material, it is far from being a get out of jail free card. The same can be said for ‘framing’. Here’s why…
‘Framing’ (also known as ‘embedding’) occurs when a website owner embeds third-party content within a site, usually their own (whether an intranet or website). Framing is used not to re-direct individuals to another site, but so that the visitor can view content without leaving a site, and typically involves the use of a mini-player, or ‘frame’. An example of this might be when embedding a YouTube video on your website.
An illustrative legal case from the EU on this matter is Bestwater International GmbH v Michael Mebes and Stefan Potsch, where:
- The defendant's business was in direct competition with the claimant's business.
- The defendant, in this case, was found to be using a video from Youtube and embedding it into their own website.
- The rights to this video were owned by Bestwater (the claimant), who had not given permission or any rights in order for that video to be uploaded to Youtube.
The initial upload to YouTube immediately raises a red flag as it would appear to be a breach of copyright law in its own right. We explain below why this is a problem and how particularly in the Bestwater scenario, this may lead to a secondary infringement (distribution).
Within the scope afforded to it by the referral from the German court, the European Court of Justice (ECJ) concluded that what must be determined was whether a communication to a new public had taken place. This limited ruling was one which has been applied in many cases, namely Svensson, which we discussed in the previous article.
As a quick re-cap, EU courts will look at whether:
- there has been a communication to the public - which will most likely always be the case, as it is as simple as making the works available, and - The communication will have to be a new public.
However, as we have seen in Svensson, the law is never that straightforward, and there are many other factors which must also be considered::
- The fact that the YouTube video was uploaded without Bestwater’s permission is a major issue, as the ECJ cannot have wished to disregard the legality of the initial upload. Acting in this way is viewed as a form of distribution – which argues that a license should be obtained in order to avoid potential infringement claims. It should also be noted that, just because YouTube have the clip on their website, rather than yours, does not mean that the rights-holder cannot claim against YOU for infringement of their rights.
- Secondly, the courts give no mention to economic or commercial gain. This, like Svensson, will cause major obstacles in the road. As a direct competitor of Bestwater, the defendant appears to have been using the work for a commercial purpose. This is, consequently, problematic and the rightsholder’s permission (ie a license) would help avoid infringement.
- The ECJ failed to provide any discussion on the implications of restricted access to works. Where the original copyright owner has Terms and Conditions defining the usage of their content, or even just subscription payments, then framing/embedding their content on a third-party site, or on your own, will be seen as providing it to a new public ... and you are therefore liable.
In short, respecting Bestwater the ECJ left a lot open (as the ECJ were only able to answer questions submitted to them by the lower German court), just as they did in Svensson. This highlights the fact that copyright law is an unfolding story and a moving target within the EU, as elsewhere.
In consequence, things in copyright law are not as straightforward as one might wish in a perfect world – and it is that lack of clarity, among other things, which makes things potentially dangerous. One would probably not wish to be the EU’s next test case.
It is always better to be safe and to get a license when you are using content that is not yours. Display Rights are more than happy to provide a license from one of our many content partners or to investigate and negotiate on your behalf to secure one from any other rights-holder.
You can then use that copyright-protected material without having to worry about leaving yourself, or your company, open to future litigation.
If you feel inspired to find out more about anything we've said here, do call us on +44 1908 041290 or leave a comment below and we'll be in touch as soon as we can.