An overview of international jurisprudence on embedded linking and framing
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Introduction
The Internet has become one of the most important channels to distribute and share content of whatever nature – whether that is plain text, images, videos or music. From the beginning, the possibility to link to other sites made it easy for publishers to integrate third-party content in their own offering. Meanwhile, simple linking has been spiced up – framing and embedding are both technical solutions to make third-party content appear as an integral part of your own website. From a legal point of view, these techniques, which are typical for the reference-based use of today’s Internet, raise difficult questions in particular in the fields of copyright and unfair competition law.
In recent years, various national jurisdictions saw court decisions on individual legal aspects of linking, deeplinking (i.e. linking to a specific sub-page rather than to the homepage), framing and embedding. In February 2014 the European Court of Justice ruled that links do not infringe copyright as long as the material is “freely accessible” on another website. The court decided that links do not reach a “new public” within the meaning of Sec. 3 (1) of the Directive 2001/29/EC because the content is already available to all internet users on the original website. While a German case regarding embedded videos is still pending the judges have expressed a rather technology-friendly approach with their recent ruling.
However, there still is a lot of uncertainty associated with embedding content from third-party websites. In this environment, it is crucial for publishers and content providers to know where the red lines are in individual jurisdictions – as what may be acceptable in Germany may already be inadmissible in the UK or France. Fieldfisher, together with various contributors from our international network, have analysed the case law that is existing in this field of law, and prepared the following overview. We hope that this work will help you and your business in avoiding unnecessary risks when exploring the opportunities the Internet offers.