We all becoming experts in the manipulation and sharing of electronic text and images. Sharing, linking and embedding material is ever easier using a range of different devices. So what does copyright law have to say about this?
We reported last February on the Svensson hyperlinking decision. That case introduced the idea of a ‘new public’. The European Court said that using hyperlinks to give access to material would not infringe copyright unless a new public were given access to it. Material already in the public domain could not be controlled using copyright law.
But what if the linking is to content made available illegally?
In a preliminary ruling given in October (only the short-form order has been published in English, and that took two months) the European Court has looked at introducing material to an internet site by ‘framing’. It said that if the copyright material is freely available on the internet, then inserting it into another site by framing did not infringe. It was not being ‘transmitted to a new public or communicated a specific technical method different from that of the original communication’ (BestWater International v Michael Mebes).
Reports of the underlying German proceedings explain that BestWater, a company selling water filtration systems, had produced a 2-minute promotional video on environmental pollution and its effect on drinking water. This video clip was uploaded to YouTube, BestWater said without its permission. Others then made the video available on their websites using framing. Essentially this means that the video was made available in a frame allowing access to the clip. In order to watch the video internet users could click on a link to play the video by retrieving it from the YouTube server.
So in the German proceedings, Bestwater said that the uploading to Youtube was done without its permission. But the European Court didn’t deal with that point. Where does that leave us in relation to content has been put on the internet illegally?
A Dutch case involving a photographs from a shoot for Playboy magazine may give us a clearer view. Before their publication in the magazine, the photos were illegally uploaded onto an Australian website, and a link to them appeared on a Dutch site. The Dutch Advocate General has recommended referral of a series of questions to the European Court - questions which specifically deal with linking to illegal content. If the case does get that far it seems that the European Court will not be able to sidestep the point again.