When embedding is permissible according to the Court of Justice of the European Union

In this article, we will summarise what the Court of Justice of the European Union (CJEU) explains about the so-called embedding of content from one website to another. I.e. - when this should be treated as a lawful act and when as a possible infringement of intellectual property rights.

But before that, let's point out what the term embedding means. You may not guess, but you encounter "embedding" daily on the web. Recall the last article you read about a new movie. Most likely, on the movie analysis web page there was a "window" to Youtube that allowed you to view the movie trailer without leaving the page and opening a new browser tab with the Youtube video address. In another case, you might be reading about your favourite football club's new transfer, whereas the page with the news has an 'embedded' window to the club's official twitter account, where the arrival the new player is announced. It is these technologies, which allow you to access another internet resource without having to leave the original page you visited, that are called embedding.

The question of whether and in which cases this "embedding" is lawful is the subject of discussion in the judgment of the CJEU in case C-392/19, also known by the name of one of the parties - VG Bild-Kunst. The judgement was delivered on 9 March 2021 and from that moment its provisions are binding on the courts and other institutions of all EU countries, i.e. it has effect in Bulgaria as well.

In order to answer the above question, one must first consider how the content was initially published on the source website. It should be assessed whether the copyright holder included restrictive measures and means in the original publication which are of a nature to prevent the publication of the content on another website. If such measures have been properly implemented, then the 'embedding' of that content on another website, without the consent of the copyright holder, will constitute infringement. This is the place to point out an important technical clarification by the CJEU. According to the judges, in order for the copyright owner to be able to claim that it has properly restricted access to the content, this restriction must be implemented by "effective technological measures". Here is the legal definition of this notion:

„[…] “technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the right holder of any copyright or any right related to copyright as provided for by law

[…] Technological measures shall be deemed “effective” where the use of a protected work or other subject matter is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject matter or a copy control mechanism, which achieves the protection objective.”

In other words, an effective technological measure is one that technically impedes the embedding process. If such a measure, applied by the copyright holder in the original publication, is overcome by another technological solution and the content is eventually embedded on another website, then there will be copyright infringement.

The existence of such a limiting technological measure implies some kind of obviousness. For example, if the embedding system fails to embed the content, displays errors, or directly displays a caption indicating that embedding is prohibited, it is clear to the person who wants to use the content that the rights holder opposes this action. If that obviousness is absent, i.e. if such technological measures are not implemented, according to the CJEU, the rights holder should not be able to claim infringement. Thus, for example, if embedding of the content on other websites is entirely technically possible, even though the terms of use of the source website contain a sentence prohibiting such actions, this should not, according to the CJEU's logic, be sufficient to give rise to a claim of copyright infringement. This approach of the Court is explained by the need to ensure legal certainty and the smooth functioning of the internet. Hence, the prohibition of embedding must be clear and derive directly from the technical specifics of the source site, and not need to be inferred by other means - for example, from legal texts.

Even if the effective technological measures in question are not applied to the content you wish to embed from another website on your own one, the safest legal approach remains to seek the consent of the rights holder of the content in question. However, sometimes this is not possible for objective reasons - in such cases, if embedding is not technically restricted, you should be able to rely on the CJEU's rulings and use the content. But again, a clarification is needed - always make sure, if possible, that you are embedding content from a website where it has been uploaded with the consent of the copyright holder. If you are taking content from a website whose administrator has, in turn, uploaded it in violation of the copyright holder's rights (for example, after effective technological measures on the source site have been overcome, or if the content is "pirated"), then it is possible that your actions in embedding that "illegally" uploaded content are also illegal.

It should also be stressed that the concepts thus explained apply to the EU territory but not to the US, for example. US courts are also actively dealing with the matter, and their conclusions do not necessarily coincide with those of the CJEU.

As you can see, the use of copyright content on the Internet, despite the above clarifications, remains a risky activity where it is best to have the opportunity to consult a lawyer familiar with these specifics. This is even more true if you believe that your intellectual property rights have been infringed - the CJEU's particular approach creates a situation where it may turn out that there is no infringement, even though the content is being used without the owner's consent. Thus, he may find himself in a situation where not only are his rights being exploited by another person, but also that a possible claim against that person will not only fail to bring compensation, but will lead to additional costs. If you need legal assistance in this area, do not hesitate to contact me.

This article expresses a personal opinion of the author, which clarifies principle and hypothetical positions - i.e. the positions expressed should not be considered applicable in every particular case. Therefore, the text does not constitute and should not be construed as legal advice. If you require such advice, you may contact me at [email protected] .