The Court of Justice of the European Union recently issued its decision in the case BestWater International GmbH v Michael Mebes and Stefan Potsch, which concerned whether a person who embeds third-party, copyrighted videos in his or her website by framing infringes copyright law.

The case arose from a dispute between BestWater International, a company that makes water filters, and Michael Mebes and Stefan Potsch, two independent commercial agents working for a competitor. The company produced a short promotional video on environmental pollution and its potentially negative consequences on drinking water. The video was uploaded to YouTube in 2010, allegedly without BestWater’s consent. The agents subsequently made the video available on their respective websites through framing, or using a frame on their webpages to display the third-party content without uploading or storing it themselves.

According to an EU directive from May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (the InfoSoc Directive), the authors should be provided with the exclusive right to authorize or prohibit any communication of their work to the public. The German court was not certain whether embedding another's work within one’s own website through framing constituted an infringement of copyright law. Therefore, the German court referred for a preliminary ruling to the Court of Justice of the European Union (CJEU), asking it to clarify this issue.

A new public

The court decided not to consider the origin of the YouTube upload as relevant in this case. The essential question was whether a person is permitted to embed copyright-protected videos to their website by framing technology. To answer this question it is crucial to determine if the work in question was communicated to a new public, and the court referred to an earlier judgment where the subject of the dispute was very similar, except that it dealt with hyperlinking (the inclusion on one's website of clickable Internet links redirecting users to press articles) instead of framing. In this case, the court held that the work communicated on the website was available to all potential visitors and since access to the website was not restricted, all Internet users were free to visit it. For this reason, "making available the works concerned by means of a clickable link" did not lead to the work being communicated to a new public and was not copyright infringement. The conclusion in the BestWater case followed this precedent: the work, the court said, was not communicated to a new public, as it was already freely accessible to all Internet users on the website to which the link points.