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Digesting "Svensson" and waiting for "Bestwater": Fieldfisher publishes study on Embedded content in Europe and the world

Embedded content has become one of the most popular means to use and distribute third-party content on the Internet. Albeit the technology is difficult to grasp under traditional copyright concepts, Embedded content has become one of the most popular means to use and distribute third-party content on the Internet. Albeit the technology is difficult to grasp under traditional copyright concepts, and while everybody is waiting for the CJEU decision in the pending Bestwater case, Fieldfisher takes a look at national case law in and across the Union´s borders.

Almost all popular video and music platforms such as YouTube or Vimeo offer ready-to-use copy-and-paste codes to embed third-party content into any website. Users can enjoy such content without ever leaving the website they are currently browsing. Technically, however, "embedded" content will never be stored on or processed by the embedding website – the embedding code simply integrates the player of the content platforms such as YouTube into a website and opens a "window" to this platform. This is convenient for both the embedder, who does not need to waste storage capacity when enriching his website with audio or video content, and the user who does not have to leave the website he is currently browsing to access embedded content. However, it might cause a loss in traffic and revenue for the original publisher, as the environment in which the content has originally been published (and which may include paid ads) will not be presented to the user if the content has been embedded on another website. This potential loss has fuelled a debate as to whether embedding constitutes copyright infringement and whether there are any trade mark, unfair-competition or passing-off issues if third-party brands or trade marks are used to identify the source or origin of embedded content.

Svensson


The first crash barrier has recently been set by the CJEU in the case of Nils Svensson and Others v Retriever Sverige AB (Case C-466/12) (click here for previous commentary). In this case, journalists of the Swedish newspaper "Göteborgs-Posten" issued proceedings against Retriever Sverige, a media monitoring company which provides hyperlinks to newspaper articles to paying customers without the permission of the copyright owners.

The court confirmed that linking to third-party content would not infringe the rights owner´s copyright in such content, as long as the material is "freely accessible" on another website.

The European judges found that permission from the rights owner would only be necessary if the hyperlinks were directed at a "new" public. According to the court, a public would only be "new" if it "was not taken into account by the copyright holders when they authorised the initial communication to the public". The court ruled that, because the articles have been freely accessible on the newspaper’s website without any pay-wall, the users of Retriever Sverige’s Internet-based service would not constitute a "new" public.

Jumping on the bandwagon


The admissibility of simple linking may be a no-brainer, but – quite surprisingly – the CJEU stated that there would also be no copyright infringement even if the user has "the impression that the work is appearing on the site on which the link is found, whereas in fact that work comes from another site". This seems to imply that the CJEU´s ruling is not limited to common linking, but extends to content that is "embedded", i.e. accessible on the embedding website as if it was own content of that website.

Bestwater

Whereas Svensson concerned a case where embedded content was made accessible on the Internet by the rights owner, the pending Bestwater case concerns the embedding of content from a third-party platform that has been published on the third-party platform without authorisation of the rights owner. Following the reasoning in Svensson, one would expect the CJEU to deem the embedding of such content to be copyright infringement, as the original publication also constituted copyright infringement. However, the question still remains whether the embedder can be held liable for embedding content if the terms of use of the publishing platform include a representation or warranty of copyright ownership of the uploader, i.e. whether the embedder may rely bona fide on the assurances of the uploader.

The bigger picture


Bestwater is likely to be decided in 2014 or the beginning of 2015; however, in the meantime, substantial questions remain unclear. The CJEU´s decision in Svensson has not been greeted with applause due to the lack of legal depth in its reasoning. The legal discussion in some EU member states has already touched on a variety of additional arguments and positions, and it is also worth looking across the EU´s borders to get an understanding of the debate. Fieldfisher, together with contributors from our international network, has conducted a study on embedded linking and related legal questions across 11 jurisdictions (please see link at the end of this article). This study yielded some guidelines that deserve to be highlighted:

Simple linking is admissible in most jurisdictions under copyright and unfair-competition-law aspects. Some jurisdictions, however, see a potential copyright liability if the text of the link itself contains copyright-protected language. Deep-linking may also raise concerns in certain jurisdictions. In one jurisdiction (Netherlands), case law indicates that the fact that the material to which the link directed was not yet available to the public is decisive. This is consistent with the Svensson ruling.

Embedding content from a third-party source is the most debated issue at the moment. The legal situation can be regarded as unclear with a tendency that, before Svensson, embedding was regarded as copyright infringement in most jurisdictions and requires a licence of the rights owner of that content.

From an unfair-competition/passing-off angle, in most jurisdictions there is a liability risk under specific circumstances, e.g. if the link is presented in the form of a registered trade mark and the use is unfair or detrimental to the trade mark; or if a trade mark contained in a link or embedded content creates confusion about the relationship between the two sites.

For further in-depth information on the different jurisdictions, please download our "International Survey on Embedded Linking".

The author, Philipp Plog, is a partner in the Fieldfisher Hamburg office.

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