The collecting society, GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte), has called for internet users to pay a licencing fee to embed copyright-protected YouTube videos on websites.
The collecting society argues that embedding differs from linking to a YouTube video, as it uses a process called “framing” which breaches copyright holders’ rights. This is because embedding videos represents a distinct method of exploitation which requires its own licencing arrangement.
The GEMA also argues that in contrast to clicking on a link, it is less clear for internet users when clicking an embedded video that the content may originate from a third party.
Legality of framing
Whether embedding copyright-protected videos is indeed a distinct exploitation method is disputed and has not yet been legally clarified. This question is currently before the European Court of Justice.
The dispute is whether embedding videos constitutes “making them publicly available”, which if done without consent of the copyright holder infringes copyright.
The national courts have reached differing conclusions.
Some believe that framing, which involves presenting content on a website which originates from another website (e.g. YouTube videos on Facebook), does not infringe copyright, as it has already been made publicly available on the original website. As such, it is similar to placing links on a website.
Other courts, however, take the view that embedded videos are not the same as links, as the content can be accessed directly on the website where the video is embedded. The content is therefore being made publicly available.
German lawyer and partner at WILDE BEUGER SOLMECKE, Christian Solmecke, states, “For me, embedding copyright-protected videos does involve making them publicly available. This is because by embedding videos, users extend the availability of the content.”
The GEMA has announced on its website that it intends to await the ECJ judgment before taking any concrete steps. The collecting society states that should the ECJ come to the conclusion that framing does concern a copyright relevant use, it will consider options for action in light of its fiduciary duty to act on behalf of its members.
Double licence fee
If the ECJ reaches the decision that framing does represent an independent method of exploitation and should it become subject to a copyright licence fee, consideration will need to be given to how the fee will apply in the case of YouTube videos.
Christian Solmecke states, “It would be unfair if the ECJ’s judgment results in YouTube paying a licence fee when users watch videos and users having to pay an additional licence fee for embedding videos. Such a double licence fee is likely to be illegal. However, as far as I know, YouTube has not yet reached agreement with the GEMA which means this legal question is theoretical. Also, in theory, it is not YouTube that is obliged to pay a licence fee or negotiate with the GEMA, but the users who upload videos.”
The GEMA’s announcement demonstrates how important the ECJ’s judgment will be for copyright law in Germany and the possible consequences the decision could have.