Is there a better way to start a new
week than with a new copyright case being referred to the Court of Justice of the
European Union (CJEU)? 

The answer is most probably ‘no’ when such
a reference for a preliminary ruling concerns the trendy right of communication to the
 This is Case
 BestWater International, a reference from the German Bundesgerichtshof (Federal Court of Justice) seeking
clarification as to the following:

“Does the embedding, within one’s own
website, of another person’s work made available to the public on a third-party
website, in circumstances such as those in the main proceedings 
any German readers provide more background information?]
constitute communication to the public within the meaning of Article 3(1) of Directive
, even where that other person’s work is not thereby communicated
to a new public and the communication of the work does not use a specific
technical means which differs from that of the original communication?”

This is a very relevant question.
Should the CJEU respond in the affirmative, then users who wished to embed third parties’ works within their own websites would have to obtain permission from the relevant rightholders. 

Merpel recalls that, although in a different context, treating embedded
works as separate works has been the choice of the Orphan Works Directive (Directive
, on which see here; see also the 
EIFL Guide to the Orphan Works Directive ).
Among other things, Recital 13 to the Directive states that 

Merpel’s favourite meaning
of the verb “to embed”:
To enclose snugly or firmly” 
Before a work or
phonogram can be considered an orphan work, a diligent search for the
rightholders in the work or phonogram, including rightholders in works and
other protected subject-matter that are embedded or incorporated in the work or
phonogram, should be carried out in good faith

As explained by the UK Intellectual Property Office
(IPO), the BestWater case has been stayed pending the judgment
in Case
 Svensson (on
which see the relevant Katpost here and
the Opinion of the European Copyright Society here),
a reference from the Swedish Svea hovrätt asking whether a clickable link constitutes a communication to the
public. This very question has also been asked in the later reference, still
from Sweden, in Case
 C More
 (on which see here). 

If you feel that
your summer holidays lack excitement, you may solve your problem by thinking
BestWater and sharing your
reflections with the IPO 
by emailing As the case has been stayed, there is currently no
deadline for submitting your comments.

UPDATE (h13:50): from Katfriend Dr Ulrich Hildebrandt (Lubberger ∙ Lehment) comes this helpful link to background information about the case. Thanks Ulrich! 

via The IPKat: Does embedding require permission?