With the eagerly awaited judgement published last November 29th, concerning the lawsuit brought by VCAST Limited (Vcast) against Reti Televisive Italiane s.p.a. (“RTI” - a company of the Mediaset Group), the European Court of Justice (Case C-265/16) clarified that video recording in cloud can not be considered legitimate if carried out through the “active” intervention of third parties. As already mentioned in the opinion of the Advocate General (already commented here), the term “cloud computing” refers to access on demand, through a telecommunication network (Internet), to shared IT resources where the user does not purchase or hire IT equipment, but uses, in the form of services, infrastructures belonging to a third party.

In the case at hand, Vcast provides an online recording service of television broadcasts, freely accessible by media player devices in Italy, through which, by selecting a broadcast signal frequency on the Vcast website, the user is shown the programming TV channels included in the above said service. Subsequently, the system managed by Vcast captures the television signal by its own antennas and records the time slot of the selected broadcast signal in the cloud storage indicated by the user.

With its decision, the Court reiterates that the principle of free movement of information society services provided from another Member State - as set out in art. 3 of the E-commerce Directive 2000/31) - is not applicable to a procedure, such as the one in question, concerning copyright and its exceptions (paragraph 24).

The judgement also confirms that the regime of exceptions and limitations to copyrights provided for by art. 5 of Directive 2001/29 (InfoSoc) shall be interpreted strictly: “the provisions of a directive which derogate from a general principle enshrined in the directive itself must be interpreted strictly” (paragraph 32) and that, consequently, the exception of private copying (Article 5 (2) (b), Directive cited above), “it must not be interpreted as meaning that it requires the copyright holder to tolerate, in addition to this expressly provided limitation, breaches of his rights which the making of private copies may entail” (paragraph 34).

In the specific case at stake, the Court argues that Vcast recording service does not only provide for the reproduction of television channels but, in addition, through an “active” intervention, it provides, for the purposes of reproduction, access to signals of television channels that can be recorded remotely: therefore this service “has a dual function, consisting in ensuring at the same time the reproduction and the making available of the works and the material that constitute the object of the same” (paraghraph 38).

On this basis, the strict interpretation of the private copy exception implies that the owner of the exclusive rights on copyrighted works is not deprived of his right to prohibit or authorize access to the works even for purposes of making private copies. This assumption derives, also in the light of constant case law, from the fact that the right of communication of works to the public shall be understood as including any transmission or retransmission of a work to the public, on wire or wireless, including broadcasting (as explained in recital 23 of the InfoSoc Directive).

Furthermore, “any transmission or retransmission of a work using a specific technical medium must, in principle, be individually authorized by the author of the work” (paragraph 43).

Last but not least, in case at hand, the communication of RTI’s television channels operated by Vcast is aimed at a “new” public compared to the one initially taken into account by the rights holder: all the actual or potential customers of Vcast, which moreover access the channels through Internet, namely through technical means different from those of the initial transmission.

Therefore, the case presents all the circumstances that, according to established case law, give the rightholder the discretion to prohibit the use of his works to third parties.

The Court therefore concludes by stating that it “precludes national legislation which allows a commercial undertaking to provide individuals with a remote video recording service in cloud of private copies relating to works protected by copyright, via an IT system, through an active intervention in the registration of such copies by that company, in the absence of the consent of the right holder” (paragraph 54).