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Friday, 24 October 2014

(NON-)BREAKING NEWS (and a mystery): video framing not copyright infringement

What's the mystery behind BestWater?
There are two forthcoming decisions of the Court of Justice of the European Union (CJEU) that this Kat has been keenly awaiting following the ambiguities cast by the decision earlier this year in Svensson [here and here].

The first one is C More Entertainment [linking by means of paywall circumvention] and the second one is BestWater [here, framing of videos]

This is why the calendar of CJEU activities has been carefully monitored (in vain) for months, without any hints as to possible dates for these decisions or at least [although less likely, considering that Svensson itself was decided without one] opinions of Advocates General being provided.

Now, via @Loeffel_Abrar, comes the news [with link to the German text] that the CJEU appears to have handed down its decision in BestWater on 21 October last, ruling that video framing is not an infringement of the right of communication to the public within Article 3(1) of the InfoSoc Directve:

"Die Einbettung eines auf einer Website öffentlich zugänglichen geschützten Werkes in eine andere Website mittels eines Links unter Verwendung der Framing- Technik, wie sie im Ausgangsverfahren in Frage steht, allein stellt keine öffentliche Wiedergabe im Sinne von Art. 3 Abs. 1 der Richtlinie 200l/29/EG des Europäischen Parlaments und des Rates vom 22. Mai 2001 zur Harmonisierung bestimmter Aspekte des Urheberrechts und der verwandten Schutzrechte in der Informationsgesellschaft dar, soweit das betreffende Werk weder für ein neues Publikum noch nach einem speziellen technischen Verfahren wiedergegeben wird, das sich von demjenigen der ursprünglichen Wiedergabe unterscheidet."

A more detailed analysis of this decision will follow soon.

In the meantime, a few questions arise:

1) Why was the case not listed in the CJEU calendar?

2) Why, if you search for "Case C-348/13", this entry is listed as non-existent (not even the preliminary questions are available and - no need to say - there are no press releases available either)?
3) Is the one posted the final decision or just a draft?

15 comments:

Waves said...

A mistery indeed, but you can at least find the Request for a preliminary ruling http://curia.europa.eu/juris/document/document.jsf?text=&docid=143224&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5510

Eleonora Rosati said...

Thanks! This afternoon that page was unavailable for a while though, just to make things more mysterious than they are already!

Thomas Dillon said...

This is at first glance a disturbing decision, and it is surprising that the CJEU thought it could manage without the opinion of the AG. It seems the claimants said that the framed video was put on YouTube (from which the defendants made it available on their own web site) without their consent. It would seem to follow that even if a copyright owner did not envisage any public having access to it, once it was available on YouTube no new public could be reached via the Web. But perhaps the decision was predetermined by the formulation of the question, which repeats the known tests for "new public" ("auch wenn das fremde Werk damit nicht für ein
neues Publikum wiedergegeben wird und die Wiedergabe nicht nach einem spezifischen technischen Verfahren erfolgt")? If so, one wonders why the national court did not think it was acte clair.

Ampersand said...

Ad question 1)
In paragraph 12 of the decision the Court refers to Art 99 of the Rules of Procedure of the Court of Justice. This rule provides as follows:
“Where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, where the reply to such a question may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.”
This might explain why the decision was delivered without further notice in the official calendar of the CJEU.

Anonymous said...

It seems to me that the BGH was mainly concerned with the question whether framing / inline linking made any difference compared to providing a regular hyperlink.

It seems the BGH considered that logically it could not make any difference (from a technical point of view it all comes down to transmitting a link to the work and not transmitting the work itself), but since framing allowed the framer to convey the impression that the work was his ("zu eigen machen") the BGH wondered whether it would not anyway be justified to qualify framing as a "communication to the public" of the work.

The BGH referred the question before Svensson came out, so might still have been thinking that there was any logic to the ECJ's understanding of copyright law. The BGH likely (or rather, evidently) assumed that merely transmitting a link (or footnote) to any work normally cannot be seen as a communication to the public of that work (see e.g. the BGH Paperboy decision of 17 July 2003) and that logically this cannot be different if the work was published on the location linked to without the consent of the copyright holder.

So we don't know yet whether one can infringe copyright on a work by posting on the internet (or saying out loud in public) that it can be found on YouTube (where it was placed without consent).

Anonymous said...

Anonymous @ 13:18,

I like the analogy you use in regards to "footnote" and a mere reference to another work. I would agree with you that any such type of "you might be interested in other work" cannot be construed as a violation of copyright, and that the presentation of a hyperlink - without more is difficult to equate with an actual presentation.

Even moreso than a "map is not the land" analogy, a link is not a work.

Separately, I do wonder about the limits a copyright holder has when that holder creates a link to the world wide web. Is it not common knowledge that a link so placed without more (for example, not placed behind a pay-wall) is by the nature of the web, there for every possible audience on the web? Is not consent, then naturally implied for anyone that has web access? Given the fact that mechanisms for controlled access even when hyperlinked exist, should not the presumption of invitation to all be the de facto status when a copyright holder chooses to place a link without limits?

Anonymous said...

(I'm the anonymous of 13:18 even though I'll now write CJEU instead of ECJ.)

Separately, I do wonder about the limits a copyright holder has when that holder creates a link to the world wide web. Is it not common knowledge that a link so placed without more (for example, not placed behind a pay-wall) is by the nature of the web, there for every possible audience on the web?

To some extent this has been acknowledged by the CJEU in Svensson. By making a work accessible through a hyperlink on the internet, the copyright holder communicates that work to all internet users. He can then not any longer stop others from communicating that same work to all internet users via the same technology.

However, he can still stop others from copying that work (just not the transient/incidental copy actions necessary to view the work through a browser).

So linking to a work legally made available on the internet is not a copyright infringement, but copying that work (e.g. to another web server to make it available from there) is an infringement.

Anonymous said...

I would like to see a ruling that is not based on YouTube or other site with worldwide range. Imagine a work (video) published on a small Italian site with a description in Italian. Don't you think that a direct link (frame) to it published on US site does not make in available to a completely new public that would not see it otherwise?

Anonymous said...

Anonymous @ 01:03,

Um, you do realize that ALL computers work by creating a local copy of anything you see on a browser, right?

Since someone placing the link within their posting of their copyrighted work on the web, is de facto allowing this copying, the notion of "copying on another server" as somehow not being allowed is simply illogical. It is like saying black is black, except when I want it to be white when I feel like it.

Anonymous said...

Anonymous @ 07:31,

Please open your eyes to the reality of the internet, wherein worldwide range is not something that you can close your eyes and pretend does not exist.

If you do not want the world wide range, do not place the hyperlink in your work, do not publish it to the web.

It is that simple.

Anonymous said...

@Anonymous of 13:19
Um, you do realize that ALL computers work by creating a local copy of anything you see on a browser, right?

Why do you think I wrote "(just not the transient/incidental copy actions necessary to view the work through a browser)".

Since someone placing the link within their posting of their copyrighted work on the web, is de facto allowing this copying, the notion of "copying on another server" as somehow not being allowed is simply illogical.

Look up the copyright directive. It forbids copying but makes an exception for:
"1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:

(a) a transmission in a network between third parties by an intermediary, or

(b) a lawful use

of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2."

This is not ILLOGICAL but at most SUBTLE. Too subtle obviously for those that just want to have everything for free, troubled by a false sense of entitlement.

Anonymous said...

Imagine a work (video) published on a small Italian site with a description in Italian. Don't you think that a direct link (frame) to it published on US site does not make in available to a completely new public that would not see it otherwise?

Svensson does not seem to leave any room for that. That case was about a Swedish newspaper site (and the alleged infringer was Swedish as well), but that did not play any role:

"The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them."

Not just all internet users in Sweden.

Anonymous said...

Anonymous @ 23:21,

The not-so-subtle thing that you apparently miss is that you are attempting to make a distinction that has no difference in regards to the copying that occurs with "servers," as it is the same mechanism - no difference - between the server copy and the end user computer copy.

Each are a natural result as to how the internet works.

You seek to draw a line that cannot - and should not - be drawn.

And your comment as to "want to have everything for free" could not be further from the truth, as I am an ardent rights protector. I just so happen to also be an attorney that understands the technology and I recognize that your position is not sustainable given the law and given how the technology actually works.

I bring this up so that the law may properly recognize distinctions that have actual differences from those distinctions (such as yours) that do not.

Anonymous said...

@Anonymous of 14:37:

If you cannot accept that there is a legal difference between the copying that takes place when I direct my browser at a URL and view an image and the copying that takes place when I place that same image on my own web server, a difference that is explicitly provided for by the Directive, then, with all due respect, you really should not have sought employment in the legal profession.

Anonymous said...

Anonymous @ 20:00,

There is no need to get snide about "legal differences" when my point is on the factual non-difference and how that factual non-difference means that the legal difference you wish to point to is a chimera.

Please use a little critical thinking instead of blindly accepting a "legal" difference that is based on some fallacy non-reality of how computers actually work.

In other words, your pc IS a server that you are placing the copyright item onto when you click a hyperlink. You do not - in reality - open a magic window to see the copyright item in its original place.

There is no REAL difference here. A law that tries to ignore facts is a law ripe for manipulation. I point this reality out not to disparage your want of law to control what the law wants to control, but rather I do so to highlight the fact that you - in reality - have a distinction without a difference and you need either a better law or you need AT LEAST to recognize that you need a better law.

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