Who doesn’t know this, you discover a cool music video or a funny amateur video on YouTube and want to share it with your friends on Facebook or embed it in a post. YouTube offers the possibility that you can share the video with one click. You can also simply copy the link of the YouTube video and paste it into a Facebook post – the video will then appear in the post for everyone to see. This will embed the YouTube video in the Facebook post (embedding). But is that legal or a copyright infringement? We answer your question here.
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Tobias Rottger, LL.M. Media law
Lawyer& Shareholders of gulden rottger rechtsanwalte
Table of contents
- 1 As a rule, you may link YouTube videos on Facebook or. embed
- 2 requirements for the legal embedding of a YouTube video
- 2.1 How to embed a video on YouTube
- 2.2 When to target a video to a new audience?
- 2.3 ATTENTION: Downloading video from YouTube and uploading to Facebook is illegal!
- 3 Embedding illegally published videos may be illegal
- 3.1 Private parties are generally not liable for embedding
- 3.2 Companies and persons acting in a business capacity can be liable
- 3.2.1 In practice, however, there are hardly any known warnings or lawsuits regarding embedded content
- 4 Conclusion
As a rule, you are allowed to link YouTube videos on Facebook or to. embed
…if the video has been legally published on the Internet
The ECJ had to rule in a fundamental decision (Az. C-348/13) with the question of whether the person who embeds a YouTube video somewhere else (embedding) or shares it via a link is committing a copyright infringement. If YouTube content (music videos, movies, amateur clips, etc) has been.) legal have been posted on YouTube, d.h. if the creator or rights holder had uploaded the content to YouTube, then this is not a legal problem to share or embed these videos on Facebook. Because the author or rights holder have impliedly declared their consent to this by using the YouTube platform. Who publishes videos on YouTube and the function"Allow embedding" The user who activates the video gives his consent for third parties to embed the video in other websites or social media platforms.
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Can you use other people’s videos or images in your own YouTube videos??
Keyword copyright quote according to § 51 UrhG
When is the use of other people’s images and videos (excerpts) in your own YouTube video a copyright quote? If the requirement of a quotation according to § 51 UrhG is fulfilled, one can use the foreign works without the consent of the author. The requirements for a copyright quote according to § 51 UrhG we present you in this article based on a ruling of the OLG Cologne.
Requirements for legally embedding a YouTube video
The ECJ has ruled: the embedding / sharing of videos is then allowed,
- when the video not to a new audience directs and
- if no other technical means to be used for embedding.
If you simply use the YouTube share feature or embed the YouTube link in Facebook, you have not used any other technical means.
How to embed a video via YouTube
To embed the video, one must first access the share function
Then click on embed
Then copy source code. From<iframe… to</iframe> Check the "Enhanced Privacy Mode" box do not forget!
When to target a video to a new audience?
In this regard, the ECJ states:
"Notwithstanding the foregoing, however, their use does not result in the work in question being reproduced for a new audience. Because if and as far as this work on the website, to which the internet link refers to, Freely accessible is, it must be assumed that the copyright holders, when they permitted this reproduction, had in mind all Internet users as the public."
This means whenever you have a video from a freely accessible public platform like YouTube, such a video is never aimed at a new audience and can therefore be embedded or shared without prejudice. It would be different if the video z.B. on a page that would be protected by a Block such as z.B. a PayWall would be shielded from the public.
ATTENTION: Downloading a video from YouTube and uploading it to Facebook is illegal!
You have to distinguish between linking and embedding a YouTube video and downloading it and uploading it again on Facebook. Who downloads / copies a YouTube video and uploads it to Facebook resp. published, without having the consent of the author / rights holder, commits a clear Copyright infringement!
Embedding illegally published videos may be illegal
Distinction between private individuals and entrepreneurs
In the above-mentioned decision, the ECJ had unfortunately not issued any opinion on the question of whether it is also possible to share and embed YouTube videos without any problem have been illegally posted on YouTube are. Because how is the user to know whether the YouTuber also has the rights to the video, which he has published on YouTube. Therefore, even after the ECJ decision (C-348/13), there was still uncertainty as to whether sharing or embedding a YouTube video on Facebook constitutes copyright infringement.
With a further decision (ruling of 08.09.2016 – C-160/15), the ECJ has shed a little more light on this issue.
Private parties are generally not liable for embedding
Unless they knew or should have known of the illegality
Good news for people who post a purely private YouTube video on Facebook. The private party is generally not liable if the YouTube video it has embedded or linked to on Facebook has been illegally posted on YouTube.
Exception: He is known, that the video unlawful has been posted on YouTube or it is Should have known. However, this is only the case if it should have been obvious to the average user that the video has not been legally posted on YouTube – e.g. if a current motion picture is published on a YouTube channel and it is not the YouTube channel of the film studio or distributor.
You need copyright advice from a lawyer?
Companies and persons acting in a business capacity may be liable
ECJ decision (C-160/15)
In his "Link"-decision, the ECJ (C-160/15) had to decide whether one can be liable for linking to a website where a copyright infringement is committed. Because there bspw. a photo was published, for which the website operator, no rights of use for publication (public access) had. We have discussed the ruling and in particular its implications for companies in detail here ⇒ Liability for links – What companies need to consider?
What does setting a link have to do with embedding a YouTube video? Much! The principles of the link jurisprudence of the ECJ can be applied to the framing / embedding of YouTube videos.
The ECJ has ruled:
Placing a hyperlink on a website to copyrighted works published on another website without the author’s permission does not constitute "communication to the public" if this is done without the intention of making a profit and without knowledge of the illegality of the publication of the works. On the other hand, if these hyperlinks are provided with the intent to make a profit, knowledge of the illegality of the publication on the other website is to be presumed.
What does that mean? Embedding, the embedding of YouTube videos is basically allowed, if the video at some point times legally published on the Internet has been.
The embedding or. Linking the YouTube video would then be problematic for a company or a person acting in a business capacity if the following requirements were met:
- The author / rights holder of the video has this never published on the Internet. E.g. if a film had only been released on DVD and a third party had "ripped" the film and published on YouTube.
- The person who embeds the YouTube video or posts it on Facebook via a link must be aware of this Intention to make profit act. Due to this requirement, no private persons are liable as a rule. However, the intention to make a profit does not mean that the person must want to make money by embedding the video, but only that it is a company or a person acting in a business capacity. Any commercial action is affected by this. It is sufficient that the video is posted on the company Facebook fan page or embedded in the company blog.
- The company has Knowledge or would have Knowledge of the illegality of the video must have. You are probably thinking now – great, this prerequisite fails the liability for my company. We did not know that the video was published illegally on the Internet. Unfortunately it is not that simple. Because the ECJ is of the opinion that the knowledge of the unlawfulness automatically assumed will, if content is embedded or shared with the intention of making a profit.
- According to the ECJ, this automatic presumption can only be countered if one’s necessary inspection obligations has been fulfilled. Unfortunately, the ECJ did not specify what these verification obligations look like. In any case, it is necessary to research more intensively whether the YouTube channel operator whose video you want to embed or post on Facebook via a link is also the author or rights holder.
In practice, however, there are hardly any known warnings or lawsuits because of embedded content
The risk is currently rated as rather low
At first glance, this sounds catastrophic for entrepreneurs. Who wants to assume liability for third-party content, if you have virtually no way to verify that the embedded content was published on the Internet with the will of the author.
But in fact there are almost no warnings or lawsuits. Why is this so? Usually most of the content has been legally published on the internet at some point in time. It is not decisive that the video was legally published in the YouTube channel from which you have embedded the video, but that at some point was legally made publicly available on the Internet. But beware, what does not count if it was originally only published behind a PayWall.
As a company, the risk of receiving a warning because you have linked a YouTube video on Facebook or embedded it in a homepage is currently very low, in my opinion.
Conclusion
Who in the private frames posting a YouTube video on Facebook via link does not run any risk and does not commit any copyright infringement. Exception: you knew that the video was published illegally or it should have literally jumped out at you.
Company or Persons acting in a business capacity should not blindly link / embed YouTube videos on Facebook, but at least do a little research to find out whether the video has already been legally published on the Internet. You have the least problems with this if you embed or link to YouTube videos only from the channels of the creators or rights holders. In practice, there have hardly been any warnings or lawsuits so far, so that the risk here can also be considered rather low.