On 21 October 2014 the CJEU had to decide in the case of Bestwater whether embedding content in a website via “framing” constitutes “communication to the public” within the meaning of Article 3 of the InfoSoc Directive and therefore infringes the copyright of the creator of the content.
“Framing” refers to the practice of linking to content in a way that the linked content is “framed” by content on the website which contains the link. The user therefore does not have to leave the website containing the link to see the linked content. This is most commonly used to display YouTube videos on third party websites. As the third party website operator only provides a link he does not have to store the video on his own servers and therefore saves web space. The difference between hyper-linking and “framing“ from the point of view of the user is that the user does not necessarily realize that the content is hosted on a different website.
In the case at hand a manufacturer and distributor of water purification systems produced a video for advertising purposes that was available on YouTube in Germany. The manufacturer claims to hold all rights to the video and that he had not given permission for the video to be uploaded to YouTube. Two sales representatives that worked for a competitor embedded this video on their own German marketing websites via framing. Users were led to believe that the video was actually stored on the website of the sales representatives.
The manufacturer sued the sales representatives for copyright infringement. He claimed that “framing” constitutes a “communication to the public” (specifically a “making available to the public”) and therefore needs permission from the copyright owner. The Court proceedings reached the German Federal Court of Justice which referred the following question to the CJEU: “Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website, in circumstances such as those in the main proceedings, constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?“.
The German Federal Court of Justice considered that in principle a “making available to the public” is only done if a work is made available to a new audience. As normal hyper-linking only refers users to the website on which the content was already stored for all internet users to see, hyper-linking does not constitute a “making available to the public”. However the German Federal Court of Justice wondered whether this might be different in case of “framing”, as the website operator who uses “framing” to embed content appropriates the content and makes it his own in the eyes of the user.
The CJEU has now made it clear that linking does not constitute a “making available to the public” (or any other form of communication to the public), irrespective of which linking technique is used as long as the link leads to a website that is available to the public as a whole. The CJEU referred heavily to its decision in the “Svensson” case of 13 February 2014 (C-466/12), on which see our previous report, where it had already decided that hyperlinks do not constitute a “making available to the public” provided the link is to content that is freely and lawfully available online. According to the Court the same argument applies to “framing” as well as to hyper-links, namely that it must be assumed that a content owner that makes content available on a freely accessible website had already thought of internet users as a whole as audience for his work. Therefore the content is not made available to a new public if a publicly available website is linked. It is irrelevant for the Court whether the user is able to recognize where the material is hosted.
The decision of the CJEU brings legal certainty to the question of whether framing amounts to copyright infringement as long as the link leads to a publicly available website and the communication of the work does not use a specific technical means which differs from that of the original communication. There remains some uncertainty however over whether the link must also be to content that is available with the copyright holder’s consent. In this case the content was not lawfully available; it had not been placed on YouTube with the copyright holder’s consent but neither the German Federal Court of Justice nor the CJEU addressed this point.
 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society