The CJEU Continues to be the Court of Common Sense: The BestWater Case Ruling or Another Good Day for the Internet

The CJEU Continues to be the Court of Common Sense: The BestWater Case Ruling or Another Good Day for the Internet

Everyone was a bit thunderstruck as the Court of Justice of the European Union ( CJEU) issued its Decision [PDF] in the BestWater International Case (C-348/13) on 21 October 2014. Not by the result, which can only make us feel happy, but by the speed at which it was delivered.

Indeed, this is a very high profile case stemming from a request for a preliminary ruling from the Bundesgerichtshof (German Federal Court of Justice) lodged on 25 June 2013, relating to the interpretation of Article 3(1) of the InfoSoc Directive, and hence all IP geeks have been holding their breath to see what the outcome was…yet no one expected it to be (1) so quick and (2) so ’embedded’ with common sense.

The Legal Issue at Stake

The questions referred to the CJEU were:

‘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, 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?’

Or, in normal human being words: are you subject to copyright when you embed a video from a site like YouTube or Daily Motion for example on your website? You can imagine that the answer to this question is pretty important for anyone active on the Internet, as embedding videos is more and more a way to communicate.

Background to the Case

The question at stake relates to a dispute between BestWater International, a water filtering company, and 2 independent commercial agents working for a competitor (Mr Mebes and Mr Potsch). BestWater considered that the two agents had infringed copyright rules by embedding on their website a short advertising movie produced by BestWater which had been uploaded on YouTube by unknown parties, seemingly without BestWater’s consent.

The CJEU Ruling

The Court’s decided not to consider the origin of the YouTube upload as relevant in this case (as the 2 agents had nothing to do with it) but simply considered the embedding (or framing) act at stake.

It hence decided that:

‘… the embedding of a protected work which is publicly accessible on a website in another website by means of a link and using the framing technology, as was the subject of the main proceedings, by itself does not constitute communication to the public within the meaning of Article 3 (1) of Directive 2001/29 to the extent that the relevant work is neither communicated to a new public nor is it communicated using a specific technical means which is different from that of the original communication. (…) If and to the extent that this work is freely accessible on the website to which the internet link points, the assumption must be made that the holders of the copyright have, when they permitted this communication, considered all internet users as the public.’ [UNOFFICIAL TRANSLATION – emphasis added]


In other words, the CJEU confirmed yet again that a daily activity (after the act of browsing in the Meltwater case and the act of linking in the Svensson case) performed by millions of Internet users (be it individual users, bloggers, news outfits or anyone posting in their social media timeline) does not induce a liability under copyright law in the EU. Or to put it more directly: under EU law, you are not liable for embedding or framing a video or image from another website, if the latter is accessible to the general public.

Yet another good day for the Internet and common sense!

The only regret one can have however is that the (mis)use of copyright rules continues to force Courts to intervene to establish such common sense principles.


Related C4C posts:

Links Re Case:

Links Re Background of Case: