Retransmissions Of TV Shows From Cloud Services Need Copyright Owner’s Consent, EU High Court Rules

VCAST, a UK company that makes available to its customers internet retransmissions of Italian television programmes stored in the cloud, must obtain right holders’ consent first, the Court of Justice of European Union (CJEU) ruled on 29 November.

RTI (Reti Televisive Italiane) is one TV channel whose programming VCAST offered to its customers via the cloud, the court said in VCAST Limited v. RTI SpA (Case C-265-16) (available here: http://curia.europa.eu/juris/documents.jsf?num=C-265/16#). Users select a programme on VCAST’s website, and specify either a certain show or a time slot. VCAST then picks up the television signal using its own antennas and records the time slot for the chosen programme in a cloud data storage space purchased from other providers by the user.

VCAST brought proceedings against RTI in the District Court in Turin, Italy, seeking a declaration that its activities are legal under the private copying exception, which allows copies to be made for private, non-commercial use without consent on the condition that the copyright owner receives fair compensation. The court asked the CJEU to clarify whether VCAST’s service, provided without consent of the copyright owner or holder of related rights, is compatible with the EU directive harmonising certain aspects of copyright and related rights in the information society (Directive 2001/29/EC).

Under the directive (Article 5(2)), member states may provide exceptions or limitations to the reproduction right for private copying, but the exception cannot be understood as requiring an intellectual property owner to “tolerate infringements of his rights which may accompany the making of private copies,” the high court said.

VCAST not only organised the reproduction of RTI programmes but also provided access to them for remote recording in order to reproduce them, the court said. Individual customers chose the programmes to be recorded. Thus, VCAST’s service had “a dual functionality, consisting in ensuring both the reproduction and the making available of the works and subject matter concerned.” Under the copyright directive, any communication to the public requires consent, the court said.

The original RTI transmission and VCAST’s retransmission were made under specific technical conditions using different means of transmission and were intended for the companies’ respective publics, the court said. It held that VCAST’s retransmissions amounted to a communication to a different public from that of the original programming, requiring consent from the rights owner. VCAST’s remote recording service, therefore, can’t fall within the private copying exception, the court said.

EU Governments Adopt Approach on Single Digital Gateway

Separately, ministers in the EU Competitiveness Council approved a negotiating stance to setting up a single digital gateway that will provide online information, procedures, assistance and problem-solving services to people and companies. The agreement allows talks with the European Parliament to begin.

Among other networks and services to be integrated into the gateway is the European Intellectual Property Rights Helpdesk, which says it offers free-of-charge, first-line support on IP matters to beneficiaries of EU-funded research projects and EU small and mid-sized enterprises involved in transnational partnership agreements.