CJEU rules on private copying in the cloud
The making available of copies of TV programmes on a cloud computing service constitutes a “communication to the public” and must therefore be authorised by the copyright owner, Europe’s highest court said today.
In its judgment in VCAST v RTI (case C-256/17), the Court of Justice of the European Union (CJEU) was ruling on article 5(2)(b) of the 2001 copyright directive (the private copying exception).
It said the article precludes national legislation that allows a commercial entity to provide individuals with a cloud-based recording service of copies of protected works without the rights holder’s authorisation.
The case concerns a dispute between UK company VCAST and Italian broadcaster RTI.
VCAST offers a commercial service that allows users to select a TV programme and time slot, which it then captures with its own antennas and stores in the cloud.
VCAST sought a declaration from the District Court of Turin that its activities were within the scope of the private copying exception. In a preliminary ruling on October 30, 2015, the court found against VCAST and granted interim relief to RTI, but referred two questions to the CJEU.
These asked, essentially, whether the private copying exception in article 5(2)(b) covers a commercial enterprise that provides a remote recording service in the cloud, containing private copies of copyrighted works, without the authorisation of the rights holder.
In today’s judgment the court said that, according to settled case law, the exceptions provided in article 5 must be interpreted “strictly”.
In this case, it said, the provider of the cloud service (VCAST) offers a dual service covering both the reproduction and the “making available” of copyright works—as it is up to individual users to choose which programmes are recorded.
Under article 3 of the directive, any communication to the public (including making a work available) requires the rights holder’s consent.
Referring to the Reha Training judgment of May 2016, the court said that an “act of communication” covers any transmission of protected works, regardless of the means of technical process, and that each (re)transmission must be individually authorised.
“Public” means a fairly large number of people, it added.
In this case, the transmissions by RTI and VCAST are made under specific technical conditions, with a different means of transmission and intended for a different public. They therefore constitute separate “communications to the public” and each requires authorisation from the rights holder.
Comments were submitted by the Italian, French and Portuguese governments and the European Commission.
Advocate general Maciej Szpunar’s opinion in the case was published on September 7, 2017.
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