That BestWater order: it's up to the rightholders to monitor online use of their works

Last week this blog reported that the Court of Justice of the European Union (CJEU) had already issued its decision in Case C-348/13 BestWater, and had done so on 21 October last.

Shortly after breaking this (non-)news, this Kat was informed that the form of the CJEU decision in BestWater was that of an order, as per Article 99 of its Rules of Procedure.

This accelerated [well, kind of: the case was referred more than a year ago, but was subsequently stayed pending the CJEU decision in ... Case C-466/12 Svensson, on which see here, here and here] procedure is possible "[w]here 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".

Oliver Löffel

This is what happened in BestWater, as Katfriend Oliver Löffel (LÖFFEL ABRAR) helpfully explains:

"No, the BestWater decision of the CJEU following a request for a preliminary ruling from the Bundesgerichtshof (Germany) has nothing to do with any kind of concealment.

Although we must admit that something regarding this case seems vague. Several Germany lawyers started blogging last Friday about the decision. Other lawyers were wondering on Twitter why there was neither an official release of the decision nor a press release from the CJEU. Statements made in German law blogs such as “Embedding is not copyright infringement” provoked skeptical reactions of German lawyers, who started tweeting along the lines “Let´s hope that this is no hoax, as it looks like a hoax”.

However, the decision posted on late Friday afternoon last week on the website of a German lawyer is a final decision and not just a draft. An official version of the decision will be available in German and French within the next couple of weeks.

The question that the Bundesgerichtshof had referred to the CJEU was 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, constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, 1 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 CJEU believed that the response to this question could be already found in pre-existing case law, notably Svensson. Thus, the CJEU held that [warning: this is Oliver's own translation]:

The embedding, within one’s own website, of another person’s work made available to the public on a third-party website, by means of a link using the framing technology, such as that at issue in the main proceedings, does not by itself constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29 of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [the InfoSoc Directive], insofar as the work concerned is neither directed at a new public nor communicated by using specific technical means that differ from that used for the initial communication.

Jiri is thrilled to be asked the same questions
 again and again

This means that embedding videos which are freely available on, for example (and is it was the case here) YouTube, does not constitute an infringement of the right of communication/making available to the public if the work concerned is neither directed at a new public nor communicated by using specific technical means different from that used for the initial communication.

This said, it remains questionable whether embedding copyrighted videos would never be tantamount to copyright infringement, “even if the source video was uploaded without permission of the right owner” (see TorrentFreak report).

In the national proceedings in BestWater, the claimant has been claiming that its film [a 2-minute long commercial] was uploaded onto Youtube “without its permission”. If and to which extent the work had been communicated by the right owner itself on any other website is not clear by reading the decisions of the Bundesgerichtshof or the CJEU, and neither is the issue of whether the work was subsequently uploaded onto Youtube with the permission of the copyright owner. So the facts of the case remain vague in this respect. The CJEU’s reasoning that there is “in particular” no “communication to the public” if the work is made available “with permission”… (para 16. See to this effect Svensson, paras 25 - 28) does not really help solving these uncertainties.

Above all, it seems that the BestWater case has left one issue unaddressed, namely whether it is a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive if a third-party work has been made available to the public without permission. Internet users could still be in hot water if they embedded copyright-protected videos from other websites, for example Youtube, if such videos were made available to the public without permission from the copyright holder. Further, embedding copyright-protected videos would be an infringement if the work concerned was directed at a new public, eg if the source video requires a login or other technological measures designed to prevent or restrict acts which are not authorised by the rightholder."

***

Response to the question:
"Should you be concerned as
regards the type and nature
of content you link to?"
(if you are not Italian
and are unsure as to what
this gesture means,
read here: it is #1)

IPKat readers will remember that the last two points, ie whether lawfulness of content and paywall circumvention, may alter the Svensson test is something that this Kat discussed together with fellow Kat Alberto here and here, respectively.

By reading the order in BestWater, this Kat is now under the impression that the CJEU thinks that: no, neither matters.

Why is that?

At paragraph 16 of its order the CJEU appears to side with the referring court, that had held the view that insertion of links by means of framing does not constitute a communication to a new public because the film was already freely available on YouTube (paragraph 10). In other words: the subjective state of either the person who links or the rightholder (has he/she had authorised the communication?) does not really matter. What matters is only whether or not the content one links to is freely available on a website. This means that lawfulness of content may be irrelevant.

Having said this, does it matter whether the content one links to resides behind a paywall? In this Kat's personal opinion, it should matter, but the Court appears inclined to think otherwise. This is apparent from paragraph 18 of the BestWater ruling, in which the CJEU stated that if and to the extent that a work is freely accessible on the website to which the link is directed, it must be assumed that the relevant rightholders have, when they authorised this communication, considered "all internet users as the public". If this Kat had to bet, she would say that, similarly to BestWater, also C More Entertainment will be decided by means of a quick order.

Overall, it would seem that what the CJEU suggested in Svensson and reinforced in BestWater is that the way the internet currently works cannot be altered for copyright-related reasons, and that in any case it is up to the righolders to monitor use (and misuse) of their works. It cannot be the responsibility of "linkers" and "framers" to make sure that third-party copyright is not infringed, nor are those the subjects that should considered as infringing.