Brussels, 30/10/2014 (Agence Europe) - “Framing”, that is, using a hyperlink to superimpose a protected work (in the case at issue, a video) freely available on another site (YouTube), is not a “communication to the public” and so does not require the permission of the author.
That was the ruling delivered by the Court of Justice of the EU on Tuesday 21 October in the form of an order since it was identical in all points to the judgment in a previous case (ruling C-466/12 of 13 February 2014). The firm BestWater International challenged the right of two commercial agents working for a competitor to offer, by means of hyperlinks, access on their respective sites to a film on water pollution to which BestWater holds the rights but which is freely available on the YouTube video platform. The German Supreme Court asked the Court if “framing” on an internet site of a work that can be freely consulted on another site can be described as a “communication to the public” under the meaning of the copyright directive (2001/29/EC) and therefore requiring prior authorisation from the rights holder.
In its order, the Court says it could not. Referring to its case-law (C-306/05, see EUROPE 9326), it says that, for there to be “communication to the public”, the protected work has to be communicated by specific technical means different from what is used in the original communication, or that it is addressed to a different public (not covered by the initial communication). In the present case, not only is the work communicated via the same technical means (via an internet site), it cannot be considered that the work has been communicated to a different public, since it is, at the outset, freely available to all internet surfers on YouTube. This, the Court says, is valid also when the work is made available through framing, using an embedded link on the site to show a work which, in fact, comes from another site, without surfers necessarily being aware of the link. (FG)