The matter at hand

VCAST offers an online platform allowing users to record free-to-air television programmes of Italian televisions organisations, including RTI, by storing the recorded programmes in private cloud storage spaces. It is apparent from the order for reference that, in practice, the user selects a programme or time slot on the VCAST website, after which the system operated by VCAST picks up the television signal using its own antennas and records the selected programme or time slot in the user’s cloud data storage space provided by a third party, such as Google Drive.

VCAST brought proceedings against RTI before the Tribunale di Torino (District Court, Turin, Italy), seeking a declaration of the lawfulness of its activity. The Tribunale di Torino referred the matter to the ECJ for a preliminary ruling on, in essence, the question of whether the service offered by VCAST falls within the scope of Article 5(2)(b) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, which contains a limitation to the copyright holders’ reproduction right ‘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’.

The judgment of the ECJ

The ECJ first of all notes that VCAST does not merely organise the reproduction of television programmes by natural persons for private use, but also provides access to those programmes (paragraph 37). The provision of access, the ECJ continues, is not covered by the private copy exception provided for in Article 5(2)(b) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, considering that “the requirement for a strict interpretation of that exception implies that that rightholder is not deprived of his right to prohibit or authorise access to the works or the subject matter of which those same natural persons wish to make private copies” (paragraph 39).

Accordingly, in order to determine whether the provision of access by VCAST can be prohibited by the copyright holders, it must be examined whether this constitutes a communication to the public. The ECJ answers this question in the affirmative, considering first that “it is evident that the sum of the persons targeted by [VCAST] constitutes a ‘public’” (paragraph 47), and second, that “the original transmission made by the broadcasting organisation, on the one hand, and that made by the service provider at issue in the main proceedings, on the other, are made under specific technical conditions, using a different means of transmission for the protected works” (paragraph 48). With reference to TVCatchup (C-607/11), the ECJ holds that these transmissions (the transmission by the broadcasting organisation and that by VCAST) must be considered to be made to ‘different publics’, namely the public of the broadcasting organisation on the one hand and the public of VCAST on the other (paragraph 48, fine, and 49). “In those circumstances, it is no longer necessary to examine whether the publics targeted by those communications are identical or whether the public targeted by the service provider at issue in the main proceedings constitutes a new public” (paragraph 50).

Consequently, the offering of access to television programmes by VCAST to natural persons with the purpose of allowing them to make reproductions thereof for private use, constitutes a communication to the public, with the result that the remote recording service offered by VCAST cannot fall within the scope of Article 5(2)(b) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.