In February, the European Court of Justice ruled that you may link to websites containing copyright protected material when the website is freely available. Now, the Court has ruled that framing is also permitted.

Framing makes it possible to "mirror" a video from e.g. YouTube to any website, for instance when you link to the content of another website on your Facebook profile.  

You can then play the video on the website via YouTube even if it appears as if the video is being played directly on the website - and not via YouTube.

THE BESTWATER CASE (C-348/13)

It has been discussed whether framing violates copyright law. The question was brought to a head in a legal action where the water filter manufacturer BestWater had sued two independent agents working for one of BestWater's competitors.

BestWater had made a short video on water contamination which ended on YouTube without BestWater's consent.

The two agents showed the video on their own website by framing it from YouTube. You were therefore led to believe that the video was played directly from the agents' own website.

BestWater claimed that this was a violation of copyright.

THE EUROPEAN COURT OF JUSTICE REFERS TO PREVIOUS RULING ON LINKING

The German courts consulted with the European Court of Justice.

The European Court of Justice referred to its previous ruling in the Svensson case (C-466/12). In this ruling, it was established in relation to linking that this is not a "transfer to the public" requiring consent if the copyright protected material, e.g. a newspaper article, has already been made freely available to the public. The reason is that according to the European Court of Justice, the material is not made available to a "new public".

Consequently, the European Court of Justice establishes that this principle also applies in case of framing.

VIDEOS ON YOUTUBE: WHEN IS THE MATERIAL FREELY AVAILABLE?

The decision of the European Court of Justice provides the necessary certainty that framing of content from other websites may be permitted - and typically is permitted.

In the actual case, the video was made available on YouTube without BestWater's consent.

The European Court of Justice did not rule on this aspect. There is therefore still uncertainty as to whether the material must be made legally available on the website from where it is being framed.

contacts

Nina Henningsen

Partner

Daniel Haue Jakobsson

Attorney