“BestWater”: the possibility of disseminating content previously released on the Internet via an embedding technique

“BestWater”: the possibility of disseminating content previously released on the Internet via an embedding technique


Last October 21st, the ECJ expanded its case law regarding the online sharing of content previously released on the Internet by extending it to embedding, effectively rendering such case law consistent with previous decisions regarding hyperlinks.

In the Svensson decision dated February 13th, 2014 (C-466/12), the ECJ ruled that the practice of broadcasting a hyperlink without the author’s authorization does not constitute an infringement of author’s rights when such initial content had been previously published without restrictions. According to the Court, the new publication made via hyperlink does not constitute either a communication via different technical means, or a communication to a new public. The premise of the Court’s ruling was that, in each instance, the entirety of Internet users were freely able to access such content and accordingly there was no basis for an infringement claim.

In Bestwater, the Court applied the same reasoning to embedding, a technique that consists of inserting in the frame of a web page, an element originating from another website. This technique is widely used and enables Internet users to access content from another website without having to leave the original website they came to visit.

BestWater, a German company noticed that videos which it originally published on the video platform YouTube, were copied via embedding onto the websites of its competitors, and therefore asked the German courts to order that these videos be taken down.

After opposite decisions rendered by the trial court and court of appeals, the German Supreme Court, the Bundesgerichtshof, decided to refer the case to the ECJ for its determination as to whether, according to article 3 of the 2001/29 Directive, embedding content without the rights holders’ permission qualified as a “communication to the public” and therefore an infringement of the author’s rights.

The judges of the ECJ unequivocally answered no to that question, explaining that in order for there to be a “communication to the public” according to the directive, the content needs to be:

  •  communicated via a “specific technical mode, different from those previously employed, or
  • communicated to a “new public i.e. a public that has not already been targeted by the rights holders when they authorized the initial communication to the public of their work”.

However in “BestWater”, the embedding technique used to communicate the work was not a different technique and the targeted public was not new given that the same content was already available to the Internet users on another website with the authorization of the rights holders”.

The Court added that, in authorizing the publication of the relevant content via the video platform YouTube, the rights holders had already targeted the entire Internet community of users. Given the rights holders’ decision not to avail themselves of a wide array of means to privatize content on the Internet, the public must accordingly be deemed as all Internet users, and not only the visitors of the website.

The Court concluded that embedding content does not constitute a “communication to the public” and therefore an infringement upon the author’s rights if such content was originally published on the Internet with no restrictions.

It is worth noting that if embedding does not constitute public performance, the ECJ acknowledges that it allows for the bypass of provisions relating to reproduction rights.

The ECJ’s ruling is consistent with the decision rendered in 2012 by the 7th Circuit, Flava Works Inc. v. Gunter wherein Judge Posner held that embedding does not constitute copyright infringement as the embedding by the website myVidster was solely a connector between the server that hosts the video, and the computer of the website user. Accordingly, such embedding does not constitute copyright infringement given the absence of any form of copying or distribution of, copies of protected works.