Ordinary Hyperlink Does Not Infringe Copyright
Does it infringe copyright to offer a hyperlink to the copyright-protected material of a third party? Previous judgments have shown that this is unlikely; hyperlinking does not qualify as a communication to the public, but rather as a sort of footnote. In a judgment of 12 January 2010 the Court of Appeal of Den Bosch has now clearly established (in ground 4.98) that hyperlinking indeed does not constitute copyright infringement.
Embedded Link Does Infringe Copyright
Apparently the Court of Appeal was in an energetic mood, because although the case was not about embedding, it continued to discuss the question whether embedding is also allowed (ground 4.99). The Court of Appeal thinks this is not the case. Embedding, also known as inline linking, is a form of hyperlinking in which the content that is linked to remains, just like an ordinary hyperlink, on the server of the source site, while the content becomes visible (“embedded”) on the site of the hyperlinker. Since the material can then be listened to and/or viewed within the context of the provider of the embedded link, the Court of Appeal has concluded that this is a communication to the public and thus an infringement of the copyright of the party entitled to the source content. The Court of Appeal considers this to be consistent with case law and literature.
The latter is questionable; in literature it is a topic of discussion, but as far as case law is concerned, the Court of Appeal is right. There are already six or seven Dutch judgments that make clear directly or indirectly that embedding is infringing, or in any case unlawful. The present judgment has plainly confirmed this. Until the European Court of Justice renders a judgment on embedding, the discussion on the question of whether or not embedding is allowed will continue. The European Court of Justice is the highest court in the field of copyright law.
As also suggested in legal literature, I think that parties that offer content in a player that has an “embed” button, and thus actually invite others to embed their content, are basically giving an implied license for embedding their content, and are therefore not in a position to protest if someone actually does embed their content on his website.