Copyright and Copies in the Cloud

November 29, 2017

 In Case C-265/16 VCAST Limited v RTI SpA, the CJEU
has ruled that the making available of copies of television programmes saved in
the cloud must be authorised by the holder of the copyright or related rights.
The remote video recording service available to users was deemed to constitute
a retransmission of the programmes concerned.


VCAST is a company incorporated under UK law which makes
available to its customers via the Internet a remote video recording system for
terrestrial programmes of Italian television organisations, among which are
those of RTI (Reti Televisive Italiane).

The service operates by the customer selecting 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

VCAST sought a declaration from the Tribunale ordinario di
Torino (District Court, Turin, Italy) of the lawfulness of its activities. It
invoked the private copying exception, according to which the authorisation of
the copyright owner or holder of related rights is not necessary in respect of
reproductions on any medium made by a natural person for private use and for
ends that are neither directly nor indirectly commercial, on condition that the
rightholders receive fair compensation in accordance with Article 5(2)(b) of
Directive 2001/29/EC(the Copyright Directive).

Turin District Court, following an application for interim
measures submitted by RTI, provisionally prohibited VCAST from pursuing its
activity. It decided to submit questions to the CJEU 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
Copyright Directive.


The CJEU has found 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 Copyright 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 of the copyright owner or
holder of related rights. Accordingly, such a remote recording service cannot
fall within the private copying exception.