Cloud program recording services must respect public communication rights

The Court of Justice of the European Union rules that remote recording services of television programs constitute a public communication different from the original and that, as a consequence, they must have the authorization of the rights holders.

The Court of Justice of the European Union (TWENTY) has ruled that providing copies of television programs on a cloud content distribution service constitutes a public communication and, therefore, must be authorized by the copyright owner.

The ruling is a consequence of a lawsuit filed against the English company VCAST before the Turin Court to cease its remote recording services of Italian broadcasters transmitted by terrestrial means such as the Mediaset subsidiary, RTI (Reti Televisive Italiane), among others. The client selects a broadcast and a time slot. Next, the system managed by VCAST captures the television signal through its own antennas and records the time slot of the selected broadcast in a cloud storage space (cloud computing), thus making the copy of the broadcast broadcasts available to the client via the Internet.

VCAST asked the Court of Turin (Italy) to declare that its activities were legal. To this end, it invoked the exception of private copying, according to which the authorization of the owner of copyright or rights related to copyright is not necessary for reproductions on any medium made by a natural person for private use and without direct or indirect commercial purposes, provided that the rights holders receive equitable compensation.

The Court of Turin, following a request for provisional measures presented by RTI, provisionally prohibited VCAST from continuing its activity. In this context, before issuing its final decision, that court decided to refer a preliminary ruling to the Court of Justice, essentially asking whether the VCAST service, provided without the authorization of the owners of copyright or rights related to copyright, was in compliance with the Copyright Directive.

Through this week's ruling, the Court of Justice considers that the service provided by VCAST has a double functionality, consisting of guaranteeing both the reproduction and the making available of protected works.

To the extent that the service offered by VCAST consists of making protected works available, it involves communication to the public. In this regard, the Court of Justice recalls that, according to the Directive, any communication to the public, including the making available of a work or a protected subject matter, must be subject to the authorization of the rights holder, since the right of communication of works to the public must be understood in a broad sense, including any type of transmission or retransmission of a work to the public, whether by wire or wireless, including radio broadcasting.

The Court of Justice considers that the original transmission carried out by the broadcasting organization, on the one hand, and that carried out by VCAST, on the other, are carried out under specific technical conditions, using a different mode of transmission of the protected works, and each of them being intended for its audience.

Luxembourg concludes that the retransmission carried out by VCAST constitutes a communication to the public different from the original and that, consequently, it must have the authorization of the owners of the copyright or rights related to copyright. Therefore, a remote recording service of this type cannot benefit from the private copy exception.