HomeInsightsCourt of Justice of European Union finds making available of copies of TV programmes saved in the cloud must be authorised by copyright holder

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VCAST is a UK company which makes available to its customers via the internet a remote video recording system for terrestrial programmes of Italian television organisations, including RTI (Reti Televisive Italiane).  The customer selects a programme and a time slot and the VCAST system then picks up the television signal using its own antennas and records the time slot for the selected programme in a data storage space in the cloud chosen by the user, thereby making a copy of the programmes broadcast available to the customer via the internet.

VCAST sought a declaration from the District Court in Turin, Italy, that its activities were lawful.  VCAST argued the private copying exception, according to which the authorisation of the copyright holder is not necessary in relation to reproductions on any medium made for private use and for ends that are neither directly nor indirectly commercial, on condition that the rights holder receives fair compensation.

The Turin court, following an application by RTI for interim measures, provisionally prohibited VCAST from pursuing its activities and submitted questions to the CJEU asking, in essence, whether VCAST’s service, provided without the consent of the copyright holder, was compatible with the Copyright Directive (2001/29/EC). In particular, whether the copying concerned fell within the private copying exception in Article 5(2)(b) of Directive 2001/29.

The CJEU found that the service provided by VCAST had a dual functionality, consisting in ensuring both the reproduction and the making available of protected works.

The CJEU said that, to the extent that the service offered by VCAST consisted in the making available of protected works, it constituted a “communication to the public”, which therefore required the copyright holders’ consent.

The CJEU decided that the original transmission made by the broadcasting organisation and that made by VCAST were each made under specific technical conditions, using a different means of transmission for the protected works, and each was intended for its own public. Accordingly, following the first TVCatchup decision (C-607/11), there was no need to assess whether VCAST reached a new public: VCAST’s different means of transmission to an intended public was sufficient for a finding of communication to the public by VCAST.

In the CJEU’s view, it followed that the recording element of VCAST’s activities could not fall within the private copying exception because the subsequent communication to the public undermined the rights of rightsholders, and the CJEU decided that the exception was not available in such circumstances.  Furthermore, the communication to the public by VCAST required authorisation. It followed that, to answer the Italian court’s questions, Directive 2001/29, and in particular Article 5(2)(b), precludes national legislation which permits a commercial business to provide a remote PVR service to private individuals where the business is actively involved in the act of recording. (Case C-265/16 VCAST Limited v RTI SpA — to access the judgment in full, go to the curia search form, type in the case number and follow the link).