The CJEU decides on the private copying of works making use of cloud services

Thursday, 11 of January of 2018

The Court of Justice of the European Union (hereinafter CJEU) has decided on the judgment of 29 November 2017, C-265/16, VCAST Limited / RTI SpA about the application of the private copying exception, which is regulated in Article 5.2 b) of Directive 2001/29, to a cloud-based video recording service.

VCAST makes available to the public a video recording system of broadcasts of Italian television programs, including those of RTI, which are stored in the cloud. The customer selects a programme and a time slot. The system operated by VCAST then 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 by the user, thereby making the copy of the programmes broadcast available to the customer via the Internet, at any time from anywhere.

The procedure began with the claim filed by VCAST against RTI, before the Court of Turin. VCAST looked for a declaration of non-infringement in relation to the activity that carried out. The Court, following an application for interim measures submitted by RTI, prohibited VCAST from continuing with the activity.

Before delivering its decision, the Court of Turin decided to refer the case to the Court of Justice for a preliminary ruling asking, in essence, whether VCAST’s service, provided without the consent of the copyright owner or holder of related rights, is compatible with the Directive 2001/29. That is to say, if that Directive impidesa company to offer customers a remote video recording service in the cloud of private copies of works protected by copyright, without the rightsholder’s authorization.

In order to response to the preliminary ruling, the CJEU states that Article 5.2 b) of Directive 2001/29 consists of the fact that the private copying exception prohibits the copyright holder from using his exclusive right to authorize or prohibit reproductions of persons who make copies of their works for private use. However, and taking into consideration the judgment of 10 April 2014, C-435/12, ACI Adam, it does not mean that the rightsholder has to tolerate the copyright’s infringement that could happen because of the private copying exception. In this sense, the CJEU emphasizes the dual functionality of the VCAST service: on the one hand, the reproduction of the content (right of reproduction) and, on the other hand, the making available to the public of the works (right of communication to the public), which is not covered by the private copy exception.

In relation to the right of communication to the public, taking into consideration the judgment of 31 May 2016, C-117/15, Reha Training, the CJEU recalls which are the necessary requirements to determine the existence of a communication to the public: there must exist an act of communication and this has to be directed to a public.

The act of communication must be understood as a transmission of a protected work, which means that every transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question. If, as in the case at hand, two different transmissions means are used, two different authorisations are needed.

In those circumstances, it is no longer necessary to examine whether the public targeted by those communications are identical or whether the public targeted by the service provider at issue in the main proceedings constitutes a new public. It follows that, without the rightsholder’s consent, the making of copies of works by means of a service such as that at issue in the main proceedings could undermine the rights of that rightsholder.