When recording also means communication to the public – interaction between copyright and cloud-based video recording services

On 29 November 2017, the Court of Justice of the EU (CJEU) released its judgment in response to a reference from an Italian court relating to cloud recording and computing services provided by VCAST Limited (VCAST). The services enabled VCAST’s customers to select live broadcasts of television programmes that VCAST then remotely, through its own systems, recorded and made available in a cloud data storage space. The Italian court asked whether VCAST could provide this service without the permission from the owner of the copyright over the programme, with a specific query as to the application of the private copying exception provided in Article 5(2)(b) of the Information Society Directive (2001/29/EC) (InfoSoc Directive).

This decision was given in light of an opinion provided by AG Szpunar that concluded that the exception would only apply where the customer had lawful access to the copyrighted material in question. Although the CJEU affirmed AG Szpunar’s opinion, it refocused the reference away from the exception.

It came to the decision that VCAST were both recording and providing access to the television programmes and that in doing so, following the case of Reha Training (C-117/15) it both reproduced and communicated those programmes to its customers. Furthermore, following the case of ITV Broadcasting and Others (C-607/11), the CJEU concluded that such communication was made using a different means of transmission from that used when the programme was originally broadcast and therefore, VCAST had communicated the copyrighted programmes to a different public. Following on from this analysis, the CJEU found that such activities came under the scope of Article 3 of the InfoSoc Directive and accordingly VCAST ought to have obtained the prior permission of the relevant copyright owners before making the programmes available to its customers.

Providers of cloud-based recording services will therefore need to ensure that their customers have lawful access to the recorded programmes. In addition, VCAST and its competitors will be unable to avoid obtaining the necessary permissions from the relevant copyright owners and may need to consider licensing issues in the future.

By Arthur Artinian and Oliver Bates