In principle “video embedding” does not infringe copyright

According to the Court of Justice of the European Union (CJEU), the embedding of a YouTube video that contents copyright-protected material of a third party, in principle, does not infringe copyright since it cannot be considered „making available to the public“ and therefore does not fall under Article 3 (1) of the Directive 2001/29/EC.

In the underlying case of the German Federal Court of Justice's (Bundesgerichtshof) request for a preliminary ruling in that matter, the defendants each embedded a video, which was produced by the plaintiff and uploaded by a third party on YouTube. They made the clip visible on their websites by linking to it. The plaintiff claimed copyright infringement.

However, although the Court held that such a case would not fall under Article 3 of the abovementioned Directive, it pointed out that the embedding of a video would be a „making available to the public“ if the video is directed to a different audience than originally intended by the copyright holder or if it is communicated by using different technical means.