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!
BREAKING: CJEU rules in that the making available of copies of TV programmes saved in the cloud must be authorised by rights owner BREAKING: CJEU rules in that the making available of copies of TV programmes saved in the cloud must be authorised by rights owner Reviewed by Eleonora Rosati on Wednesday, November 29, 2017 Rating: 5


  1. At an admittedly surface glance***, this appears to be a troubling decision.

    At least it would be in the US Sovereign. With the movement of personal things to "the cloud" and the use of "the cloud" as a personal storage locker, earlier US cases (the Sony case) would indicate that any personal capture and subsequent time-shifted replay of that personal capture falls outside of the control of the copyright owner.

    Here, the view that "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 of the copyright owner or holder of related rights" seems to not acknowledge either the US view (right or wrong), as well as seems to not address that the actual subsequent "different public" is not "public" at all, but rather is a personal (individual) member of the first "public."

    Of course, there are some distinctions attempted: the decision appears to only apply to the individual using the service THAT herself appears to NOT be in that first "public" (by way of not having actual access or ability to be a part of that first "public." In that case, the "personal locker" aspect of "in the cloud" is perhaps actually not reached.

    Interestingly, the given admitted overlap does appear to create more than one "public." You have the "natural" first public (the constrained public that does have access) and then you have the "augmented" second public (the rather unconstrained public that enjoys access through the augmented cloud). I do wonder if VCAST is a proper member of the first "public" - and in what capacity. If proper, but only as an entity receiving the works for the entity's sake, then there is a clear RE-broadcast condition. If proper, and proper as a collective of individuals, whose individual decisions control what is or is not "captured" (putatively for time-shifting or the like), then even though augmented, those individuals would need to be recognized as proper members of the first "public."

    *** I open the forum for corrections, given that I provide this view on only a most cursory read

  2. I believe this is a fair point. The whole reason of author's economic rights is to control the "public" uses of the work. In this case, when a user asks VCAST to record a work, VCAST records it and makes it available to that particular user, but not "publicly" to all users. So there is a communication, but it is not a communication to the public. As far as I understand that's how the system works.

    Eleona, could you comment?

  3. Hi Justas,

    The basic idea is the each subsequent communication to a public must be individually authorized by the rightholder. The CJEU looked at VCAST's activities, rather than those of its users.

    If we look at earlier case law, it doesn't matter that the work is made available to a broad public: it's sufficient that members of the public can access it in succession (think, for instance, of hotel customers in SGAE).

    One question that arises is however whether there is room for anything else than communication to the public (subject to rightholder's authorization) in the online environment ...

  4. I think that the "hotel customers in SGAE" may easily be distinguishable based on who has control of the initial "copying" - in line with the US version that copying for time-shifting purposes is fully permissible.


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