Aso known as embedding ...
You can upload and access content on the internet from pretty much anywhere in the world, whereas copyright law varies wherever you are in the world. What you are doing may be legal in one jurisdiction, but not in another. At the same time, copyright law in each jurisdiction is itself evolving, providing a moving target for anyone trying to stay the right side of the law.
‘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, in this case, was found to be using a video from You Tube 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 You Tube.
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:
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.
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.
