The Court rules again about “embedding”

On the basis of the judgment C-466/12 (“Svensson v. Retriever Sverige AB) recently the Court of Justice has ruled again on the relationship between copyright and forms of communication to the public of copyright works, according to art. 3, par. 1 of Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society.

In the Decision C-348/13 of October 21th, 2014 the Court has dealt with the so-called “embedding” which provides videos for ‘”incorporation” into websites. In particular, the Bestwater International, a German company, has sued two agents of a competitor, who had “embedded” on their website a promotional video released by the plaintiff.

The Bestwater has identified in this activity an infringement of their copyright, requiring the cessation of the conduct deemed unlawful and damages. Come before the Supreme Court of Germany, this has referred the matter to the European Court of Justice, in order to obtain a ruling on whether ‘”embedding” could include the definition of “public disclosure” provided for in the aforementioned article. 3, par. 1.

The judges did not contradict the line held in the previous case “Svensson”: the inclusion, within a website, of content protected by copyright law and already published on another website – in this case, a video already reached on the YouTube platform – does not constitute a “new audience” different from that which was intended for the previous publication of the work.

Therefore'”embedding “does not constitute an infringement of rights in the “embedded ” because there is not a new publication of a protected work.