MyP2P – Embedding Infringes Copyright
A discussion of the judgment of the Court of Appeal of Den Bosch
of 12 January 2010
Ordinary Hyperlink Is Does Not Infringe Copyright
Does it infringe copyright to offer a hyperlink to the
copyright-protected material of a third party? Previous judgments
have shown that this is unlikely; hyperlinking does not qualify as
a communication to the public, but rather as a sort of footnote. In
a
judgment (in Dutch) of 12 January 2010
the Court of Appeal of Den Bosch has now clearly established (in
ground 4.98) that hyperlinking indeed does not constitute
copyright infringement.
Embedded Link Does Infringe Copyright
Apparently the Court of Appeal was in an energetic mood, because
although the case was not about embedding, it continued to discuss
the question whether embedding is also allowed (ground 4.99). The
Court of Appeal thinks this is not the case. Embedding, also known
as inline linking, is a form of hyperlinking in which the content
that is linked to remains, just like an ordinary hyperlink, on the
server of the source site, while the content becomes visible
("embedded") on the site of the hyperlinker. Since the
material can then be listened to and/or viewed within the context
of the provider of the embedded link, the Court of Appeal has
concluded that this is a communication to the public and thus an
infringement of the copyright of the party entitled to the source
content. The Court of Appeal considers this to be consistent with
case law and literature.
The latter is questionable; in literature it is a topic of
discussion, but as far as case law is concerned, the Court of
Appeal is right. There are already six or seven Dutch judgments
that make clear directly or indirectly that embedding is
infringing, or in any case unlawful. The present judgment has
plainly confirmed this. Until the European Court of Justice renders
a judgment on embedding, the discussion on the question of whether
or not embedding is allowed will continue. The European Court of
Justice is the highest court in the field of copyright law.
As also suggested in legal literature, I think that parties that
offer content in a player that has an "embed" button, and
thus actually invite others to embed their content, are basically
giving an implied license for embedding their content, and are
therefore not in a position to protest if someone actually does
embed their content on his website.