Wednesday, 29 November 2017

[The IPKat] BREAKING: CJEU rules in that the making available of copies of TV programmes saved in the cloud must be authorised by rights owner

Further to the Opinion of Advocate General (AG) Szpunar [here], this morning the Court of Justice of the European Union (CJEU) delivered its judgment in VCAST, C-265/16.

This was a reference for a preliminary ruling from the Turin Court of First Instance (Italy), seeking guidance on the application of the private copying exception within Article 5(2)(b) of the InfoSoc Directive to cloud-based video recording services. 

More specifically: does EU law prohibit a commercial undertaking from providing - without the authorisation of the relevant copyright owner - private individuals with cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording?

The AG provided a sophisticated response to this question, substantially concluding that the exception - while being applicable also in instances involving  the intervention of a party other than the direct beneficiary - requires in any case that the user/beneficiary has lawful access to the work that he/she copies.

The CJEU judgment - which is not yet available on the Curia website - seems to side with the AG's conclusions. However it appears that the CJEU judgment focuses more extensively on the analysis of the right of communication/making available to the public within Article 3 of the InfoSoc Directive than what the AG Opinion does.

According to the press release:

"By today’s judgment, the Court finds that the service provided by VCAST has a dual functionality, consisting in ensuring both the reproduction and the making available of protected works.

To the extent that the service offered by VCAST consists in the making available of protected works, it falls within communication to the public. In that regard, the Court recalls that, according to the directive, any communication to the public, including the making available of a protected work or subject-matter, requires the rightholder’s consent, given that the right of communication of works to the public should be understood, in a broad sense, as covering any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.

The Court takes the view that the original transmission made by the broadcasting organisation, on the one hand, and that made by VCAST, on the other, are made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for its public. 

The Court concludes that the (re)transmission made by VCAST constitutes a communication to a different public from that of the original transmission and must therefore receive the consent ofthe copyright owner or holder of related rights. Accordingly, such a remote recording service cannot fall within the private copying exception."

A more detailed analysis will be provided as soon as the judgment becomes available: stay tuned!

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