CJEU rules on cloud based services for making available copies of TV programmes

Case C-265/16 of the Court of Justice of the European Union provides further guidance on the right of communication to the public, in the sense that making available network private video recording services may not be covered by Article 5.2.b) of Directive 2001/29/EC. Making copies of TV programmes saved in the cloud is a different means of transmission, which means that it must receive the consent of the right holders concerned.

The case in question deals with a reference for a preliminary ruling by the Tribunale di Torino (District Court, Turin, Italy), seeking guidance on the application of the private copying exception within Article 5.2.b) of Directive 2001/29/EC of the European Parliament and of the Council, of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society, amidst proceedings brought by VCAST against RTI before said court, seeking a declaration of the lawfulness of its activity.

The VCAST service consists in an Internet-based video recording system, with storage space within the cloud, for terrestrial TV programmes, among which those of RTI in Italy are included. The functioning of the service is as follows: the user selects a programme on the VCAST website, which includes all the programming of the television channels covered by the service provided by that company, being able to specify either a certain programme or a time slot; subsequently VCAST picks up the television signal using its own antennas and records the time slot for the selected programme in the cloud data storage space indicated and purchased from another provider, by the user.

In essence, the referring Court is enquiring as to whether Article 5.2.b) of Directive 2001/29/EC precludes national legislation which permits a commercial undertaking to provide private individuals with a cloud service for the remote recording of private copies of works protected by copyright, by means of a computer system, by actively involving itself (the commercial undertaking) in the recording, without the right holders consent.

The Court of Justice of the European Union (CJEU) departs from the premise that, according to settled case-law, Article 5.2.b) of the mentioned Directive must be interpreted strictly, as a provision that settles an exception of a general principle (right to authorise/prohibit any communication to the public) established by the same Directive. In addition, this exception must not be interpreted as requiring the right holder to tolerate infringements of his rights which may accompany the making of private copies within the exception (i.e. communication to the public).

The key elements of the CJEU’s reasoning are the following:

• The original broadcast and the subsequent “transmission” made by the service provider at issue at the main proceeding are seen as different means of transmission for the protected works, and each was intended for its own public.
• The service provider of the service does not only arrange for the reproduction, it also provides access to the TV programmes to be recorded remotely, therefore it has a dual functionality.
• Article 5(2)(b) of Directive 2001/29/EC must be understood in a way that the private copying exception prohibits the right holder from relying on his exclusive right to authorise or prohibit reproductions by persons who make private copies of his works. The prohibition for the right holder to rely on his exclusive right to authorise or prohibit reproductions by individuals for non-commercial purposes must not be understood as requiring, beyond that express limitation, the copyright holder to tolerate infringements of his rights that may accompany the making of private copies, such as acts of communications to the public.
• Article 3 and Recital 23 of Directive 2001/29/EC lead us to conclude that their interpretation must be that any communication to the public requires the right holder’s consent and any transmission or retransmission of a work to the public by wire or wireless means should be interpreted as an act of communication to the public.

Taking those factors into consideration, it can be inferred that the CJEU places importance on those ‘accompanying’ acts (i.e. communications to the public) which may result in a copyright infringement, apart from the private copying exception which protects individuals when making private copies of works for their personal use.

Thus, the CJEU provides further guidance on the right of communication to the public while keeping in line with previous cases where the right of communication to the public was interpreted broadly, and the interests of the right holders prevailed. Such rights are understood, by the aforementioned decisions of the CJEU, as being a key feature for right holders to pursue actual control over their copyright works (specifically if a service provider uses a cloud based system to transmit its content to a new public without any express consent). This is useful in relation to where the boundaries would be in similar cases, in order to be compatible with the reasoning of the CJEU.

In conclusion, Case C-265/16 is in line with the previous decisions of the CJEU where the right of communication to the public is interpreted in a broad sense, including all transmissions of the protected works irrespective of the means or technical process used. Essentially, the importance of the decision is that making copies through the cloud and then granting access to them would not deprive right holders of their exclusive right of communication to the public, hence the necessary consent of the right holder concerned.