Framed Questions - ECJ Takes on Content Framing

As social media has changed how we interact with one another, it also has profoundly changed the culture and environment where copyright (and other intellectual property rights) reside. Videos, pictures and other content can very easily go 'viral', especially through sharing via Facebook, Twitter and other websites, even sans the original source of the content. This aggressive sharing and consumption of content can clearly yield huge benefits, both monetary and other positive outcomes; however it presents a much darker side to the sharing of this content, more specifically the copying and distribution of infringing content. Whether it be re-hosting a video originally on YouTube, or copying and watermarking other people's popular images, the Internet is full of opportunistic people rearing and ready to cash in on the next 'viral' hit. Not all sharing is bad, and often websites can host content and rightfully attribute the content to its source, or just link directly to it - which presents a question: can you share copyrighted content, especially through what is called 'framing' (placing someone else's content within the confides of your own website, but not directly hosting the content), or are you infringing on the rights through linking to this content and placing in within your own website?

The case, which endeavored to answer this question, was BestWater International GmbH v Michael Mebes (judgment only available in German or French). BestWater International are a company in the business in making and selling water filtration systems, and in an effort to boost their sales, made a 2-minute promotional video and uploaded it to YouTube, undoubtedly attempting to reach the droves of water filtration enthusiasts using the site. Michael Mebes and his co-defendant Stefan Potsch are independent agents for BestWater's competitor, who embedded a video link to BestWater's promotional video on YouTube (which they themselves uploaded onto the service). BestWater subsequently sued the pair for copyright infringement, and the case finally culminated in the European Court of Justice late last year. In the absence of a judgment in English (which this writer was waiting for) the information conveyed in this post has been parsed from several sources; however hopefully represents an accurate reading of the case.

The question posed to the Court was simple: "Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website... 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?" In a lot of ways the case is similar to one discussed on this very blog on an earlier note; Svensson v Retriever. Even so, Svensson merely discussed the distribution of content, which is freely available on another website, when BestWater's focus is on framing that content within your own site, arguably presenting it, in a roundabout way, as your own. 

One should always be careful when framing things

Thinking back to Svensson, the decision in the case established, quite firmly, that if a work is communicated to the public, and is freely available, distributing that content without actually making new copies of it, does not constitute a communication to a new public and infringe copyright. Unceremoniously the Court saw that "[t]he embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Directive 2011/29/EC] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication". 

What is key in the BestWater decision, much like in Svensson, is the authorization of the party who communicates the original work to the public. If the content is beyond the reach of most Internet users, framing the content clearly infringes copyright; however, should the party provide the content for all Internet users (i.e. freely available through services like YouTube), it will not infringe copyright. Should a third-party, without the consent of the copyright holder, upload a video to YouTube, and then promptly frame it on their website, they will be infringing copyright within the meaning of BestWater and Directive 2001/29/EC.

The two decision reflect a clear need for change in attitudes of copyright holders when posting content online. Framing applies just as well to images and sound files as it does to video, potentially causing issues to those who are not careful in their communication of their copyrighted content. This writer, for one, believes this approach is correct, even with the hazards it potentially presents. Should you choose to share content with very little regard to its restrictions, you choose to share your content with more people that you might have intended to, and for users to be punished for your mistake seems highly inequitable. Nevertheless, individuals and companies should be more careful in their content sharing, especially when considering the openness of the Internet, and the potential benefits more open sharing can give you.

Source: IPKat