Does embedding require permission?

Is there a better way to start a new week than with a new copyright case being referred to the Court of Justice of the European Union (CJEU)? 

The answer is most probably 'no' when such a reference for a preliminary ruling concerns the trendy right of communication to the public. This is Case C-348/13 BestWater International, a reference from the German Bundesgerichtshof (Federal Court of Justice) seeking clarification as to the following:

“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 [can any German readers provide more background information?], 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?”

This is a very relevant question. Should the CJEU respond in the affirmative, then users who wished to embed third parties' works within their own websites would have to obtain permission from the relevant rightholders. 

Merpel recalls that, although in a different context, treating embedded works as separate works has been the choice of the Orphan Works Directive (Directive 2012/28/EU, on which see here; see also the EIFL Guide to the Orphan Works Directive ). Among other things, Recital 13 to the Directive states that 

Merpel's favourite meaning
of the verb "to embed":
"To enclose snugly or firmly" 

"Before a work or phonogram can be considered an orphan work, a diligent search for the rightholders in the work or phonogram, including rightholders in works and other protected subject-matter that are embedded or incorporated in the work or phonogram, should be carried out in good faith."

As explained by the UK Intellectual Property Office (IPO), the BestWater case has been stayed pending the judgment in Case C-466/12 Svensson (on which see the relevant Katpost here and the Opinion of the European Copyright Society here), a reference from the Swedish Svea hovrätt asking whether a clickable link constitutes a communication to the public. This very question has also been asked in the later reference, still from Sweden, in Case C-279/13 C More Entertainment (on which see here). 

If you feel that your summer holidays lack excitement, you may solve your problem by thinking about BestWater and sharing your reflections with the IPO by emailing policy@ipo.gov.uk. As the case has been stayed, there is currently no deadline for submitting your comments.  

UPDATE (h13:50): from Katfriend Dr Ulrich Hildebrandt (Lubberger ∙ Lehment) comes this helpful link to background information about the case. Thanks Ulrich!