I guess most of you already heard the news that CJEU recently in BestWater C-348/13 allegedly discharged embedding from copyright consent. Some media already started celebrating "this landmark ruling" and some attorneys commenting on consequences with confidence (e.g. here at FAZ). I would personally still wait with any "embedding-is-free-parties".
CJEU decided BestWater in a form of an order, which means that it considered its own case-law crystal clear. The order is basically repeating Svensson arguments, and explaining some of it rationale also for embedding: new public is a must (§ 15), freely accessible content does not reach any new public (§ 16) and any user confusion about the source of the content does not matter (§ 17) - or at least, is not a copyright business. The most important paragraph is § 18, where the court summarizes its position as follows:
German version: Denn sofern und soweit dieses Werk auf der Webseite, auf die der Internetlink verweist, frei zugänglich ist, ist davon auszugehen, dass die Inhaber des Urheberrechts, als sie die Wiedergabe erlaubt haben, an alle Internetnutzer als Publikum gedacht haben.
My free English translation: As long as a work is freely accessible on the website to which the [embed] link refers, it must be assumed that the copyright right holder allowed the communication and considered all the Internet users as a public.
The Court thus creates an assumption, for the purposes of linking, that freely accessible content is also coming from a legal source. If this is a restatement of confusing Svensson language, its a great move, which solves many problems. It also means that CJEU is listening to the critique, though in his own way. Very soon BGH will most likely confirm this, given that it was reported that BestWater is a case about the unauthorized source.
So why am I not cracking a party?
I already mentioned this couple of times [here, here]. In Svensson, CJEU told us that a national court can not extend the exclusive right of communication to the public in its national law, because this would create "legislative differences and thus, for third parties, legal uncertainty". This is nothing extraordinary given that it is long clear to everybody that this is an autonomous concept of the Union law. The problem, however, is that because the Union law harmonizes only some exclusive rights, the national court can still create some additional rights as unnamed non-harmonized rights. But even these rights are subject to some Union law, namely primary law of four fundamental freedoms of internal market. For non-Europeans, this means that CJEU could restrict the Member States even on their ability to legislate further rights, despite the fact that they are not harmonized. So it could also foreclose the possibility of the Member States to prohibit linking beyond the Svensson and BestWater.
This is not a merely theoretical problem. The Czech Supreme Court seemed to suggest (in its pre-Svensson decision) that even if embedding would be no infringement upon the right to communication to the public, it can constitute an interference with a local non-harmonized unnamed right of a copyright holder. Even the German Federal Supreme Court in BestWater referral explicitly stated that embedding videos may be a yet “unnamed right of exploitation” within the scope of Art. 15(2) German Copyright Act.
Before Svensson was handed down, I lamented on Kluwer Copyright Blog that "if the CJEU will take any of these two positions [ALAI or Copyright Society] or some middle position, things might just get worse anyway, as a CJEU ruling won’t preempt national courts from adopting “unnamed rights” and further fragmenting the landscape of exclusive rights in the EU". Now, I see a possibility of a light at the end of the tunnel. It all depends on how you read the second answer of Svensson.
If Svensson means that
- the communication to the public is merely an autonomous concept of the Union law, then the Member States are pretty much free to impose their own restrictions on embedding, whether by unfair competition or copyright laws;
- if however, it means that the non-exhaustive list of exploitation rights is restricted by the primary law to such an extend that, at least in field of the communication of works to the public, no further rights could be adopted nationally, then the Member States could not provide additional rights.