July 22 2013
Embedding videos has become increasingly popular over the past few years, especially among users of Facebook and other social media networks. This internet revolution raises the question of whether it is legal under copyright law to embed videos that contain copyright-protected material without the rights holder's consent. The Brussels Court of Appeal was recently asked to rule on this question. More specifically, it was asked whether embedding a copyrighted video from YouTube into a posting on another website constitutes a criminal offence under Belgian copyright law.
In 2008 one of the producers of Oscar-nominated short film Fait d'Hiver noticed that someone had posted the film on YouTube without her consent. She filed a criminal complaint and a magistrate started an investigation to identify the person or persons who had posted the film. The investigators traced the poster to a Russian internet protocol (IP) address, but were unable to make any further progress, because Google (the owner of YouTube) does not disclose information on non-European Google users to the authorities in Europe.
Some time later, the investigators discovered that the same video had also been made available on two other websites – www.koreus.com and www.garagetv.be – again without the producer's consent. The investigators were unable to identify the IP address of the person who had posted the video on the first website, but they did manage to identify the person who had posted it on www.garagetv.be and brought him in for questioning.
The suspect – who was a student – declared to the investigators that he had not downloaded the video from the Internet, but had simply embedded it on www.garagetv.be using a link to the YouTube video, which had been uploaded by someone else.(1) He also admitted having added a Google AdSense banner to the video which, when clicked on, referred users to a webpage containing advertisements. The suspect claims to have received two cents per click on the banner.
When the investigation concluded, the suspect was brought before the Leuven Criminal Court, where he was charged with criminal infringement of the Copyright Act. He was acquitted on May 23 2012, but both the crown prosecutor and the film producer appealed.
The Brussels Court of Appeal upheld the criminal court decision in its judgment of March 19 2013. The appeal court found that the suspect's acquittal was justified, because all of the requirements for criminal liability under Article 80 of the Copyright Act had not been met.
Article 80(1) of the Copyright Act states: "He who maliciously or fraudulently infringes a copyright or neighbouring right is guilty of counterfeiting."
Following this article, a person can be found guilty of criminal copyright infringement only if, on the one hand, there is evidence that he or she infringed a copyright or neighbouring right under civil law – for example, if he or she reproduced a work of authorship or communicated it to the public without the rights holder's consent (the so-called 'material element' or actus reus (guilty act)) in breach of Article 1 of the Copyright Act. On the other hand, there must also be evidence that the person in question was driven by the 'special' intent cited in Article 80 – that is, malicious or fraudulent intent (the so-called 'intentional element' or mens rea (guilty mind)).
In this case, the court found that there was insufficient evidence that the suspect had acted intentionally. The court followed the suspect's argument that, on the basis of YouTube's terms of service, it was reasonable for him to have assumed that the video had been uploaded onto YouTube in full compliance with copyright law and that he was allowed to embed it on other websites. In this respect, the court also noted that the video had been on YouTube for more than a year before the suspect had embedded it on www.garagetv.be, and that nobody had reported any abuse or infringement of rights in that period.
The court further ruled that the suspect had not been driven by fraudulent intent, because his actions were not for profit or commercial gain. The producer's argument that the suspect had earned money from the advertising banner that he had placed on the embedded video was dismissed by the court. Instead, it ruled that this proved merely that the suspect had exploited the banners, but not the film itself, and concluded that the suspect was not guilty of counterfeiting a copyrighted work under criminal law because he lacked the intent required by law. Following this finding, the court saw no need to address the question of whether actus reus had been present.
Belgian case law generally acknowledges that 'fraudulent intent' means that the suspect was driven by profit or by commercial gain. Fraudulent intent is generally interpreted quite broadly. Whether a profit was actually made is irrelevant; even a simple non-financial or indirect gain or advantage, for the infringer or another person, can suffice.(2)
This decision could be said to clash with this broad case law interpretation. The distinction made by the court between 'exploiting' the film and 'exploiting' the banners is clearly artificial. After all, the only reason for adding an advertisement banner to an internet video is to get viewers of that video to click on the banner, thus using the video to generate revenue. Moreover, this revenue will fluctuate according to the popularity of the video: the more popular the video, the more likely it is that there will be more clicks on the banner. Based on this reasoning, it could be concluded that the defendant had indeed acted with fraudulent intent.
The Supreme Court will have the last say, as an appeal has been lodged against the Brussels Court of Appeal's judgment. Hopefully, the Supreme Court will also address the impact of YouTube's terms of service – which allow users to embed videos and accompany them with advertisements, provided that YouTube's written consent to add the advertisements has been obtained – in assessing the defendant's intent. The fact that the YouTube video had been online for some time and that, although it had been uploaded without the rights holder's consent, nobody had tried to take it down seems irrelevant. This conclusion is supported by another decision concerning embedding by the Antwerp Court of Appeal.(3)
Communication to the public
The Brussels Court of Appeal has left one important question unanswered: is embedding considered 'reproduction' and/or 'communication to the public' within the meaning of Article 1 of the Copyright Act? In other words, was there a chance that the court could have concluded that actus reus was present in this case, had it been willing to address this issue?
Although an embedded video looks like a copy of the original video, this is not actually the case. Just like any other form of hyperlinking, embedding merely establishes a connection with the original file. Therefore, it is widely believed that the act of embedding cannot be considered as reproduction within the meaning of the Copyright Act. The Antwerp Court of Appeal, in the above-mentioned judgment, ruled that embedding does constitute communication to the public.(4)
However, it must be remembered that this judgment was issued when the European Court of Justice (ECJ) – apart from its decision in Rafael Hoteles(5) – had not paid much attention to the concept of 'communication to the public'. This fundamentally changed in October 2011, when the ECJ confirmed in the Premier League(6) and Airfield(7) cases that 'communication to the public' is a harmonised concept that must be interpreted uniformly throughout the European Union. Since then, the ECJ has started to interpret this concept more elaborately. So now the question remains of whether the Antwerp Court of Appeal decision is still compatible with this recent ECJ case law.
Fortunately, the wait for an answer to this question will not be long, as in November 2012 a Swedish court asked the ECJ to rule on whether hyperlinking and embedding constitute 'communication to the public' within the meaning of Article 3(1) of EU Directive 2001/29/EC.(8)
(1) Embedding a video on a website is similar to placing a hyperlink to a video on a website, except that an embedded video can be consulted on the website on which it has been embedded, whereas a hyperlink will redirect the user to the website on which the original video was uploaded.
(2) Explanatory Memorandum, Doc 51-2852, 18.
(3) Antwerp Court of Appeal, May 30 2011, Case 2010/AR/494.
(5) Cf ECJ, Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, December 7 2006, Case C-306/05.
(6) ECJ, Football Association Premier League Ltd v QC Leisure and Karen Murphy v Media Protection Services Ltd, October 4 2011, Joined Cases C-403/08 and C-429/08.
(7) ECJ, Airfield NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam) and Airfield NV v Agicoa Belgium BVBA, October 13 2011, Joined Cases C-431/09 and C-432/09.
(8) C-466/12, Svensson.
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