On Wednesday, 29 November, judges at the European Court of Justice (ECJ) decided that in Case C-265/16 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 according to the terms of the 2001/29/EC directive on copyright.
A company incorporated under UK law makes available to its customers via the Internet a remote video recording system (cloud computing) for Italian television programmes. This company has sought a declaration from the District Court, Turin in Italy regarding the lawfulness of its activities with regard to private copy exemptions. This provision in the 2001/29/EC directive stipulates that the authorisation of the copyright owner or holder of related rights is not necessary in respect of reproductions by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the right holders receive fair compensation.
Following an application for interim measures submitted by an Italian operator, the Italian Court provisionally prohibited the British company from pursuing its activity. It also decided to submit questions to the Court of Justice for a preliminary ruling about whether the aforementioned activity complied with the provisions in the 2001/29/EC directive.
The Court finds that the service provided by the company has a dual functionality, consisting in ensuring both the reproduction and the making available of protected works. The judges therefore argue that the service offered consists is a communication to the public and therefore requires the right holder’s consent.
The Court also takes the view that the original transmission made by the broadcasting organisation and that made by company are made under specific technical conditions, using a different means of transmission for the protected works.
The Court concludes that in this case, the activity undertaken by the company 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 as argued by the company in question. (Original version in French by Lucas Tripoteau)