On 29 November 2017, the Court of Justice of the European Union (ECJ) confirmed that, under the Copyright Directive (the Directive), the making available of copies of television programmes saved in the cloud must be authorised by the holder of the copyright or related rights.

VCAST Limited, a UK incorporated company, made a video recording system for terrestrial programmes of Italian television organisations available to its customers via the internet. The customer would select a programme and time slot and VCAST’s system would record the selected programme in the cloud storage space indicated by the user, making the copy of the programme’s broadcast available to the customer.

The issue had been referred to the ECJ by the Italian court in proceedings brought by VCAST against an Italian broadcaster, in which it sought a declaration that its provision of this cloud-based recording service was lawful in accordance with the “private copying” exception under Article 5(2)(b) of the Directive.

The ECJ found that the service provided by VCAST had two functions—reproduction and the communication/making available of copyright works. It was concluded that the retransmission made by VCAST constituted 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 under Article 3 of the Directive.

In relation to reproduction, VCAST had invoked the private copying exception under which reproductions made for private use and for ends that are not commercial do not require consent from the copyright owner, on condition that the right holder receives fair compensation. In accordance with case law, the ECJ interpreted this exception strictly and it followed that without the rightholder’s consent, the making of copies of works by means of VCAST’s service could undermine the rights of that rightholder, and could not fall within the scope of the exception.

“Communication to the public” has been interpreted broadly by the ECJ in two cases earlier this year. In the Filmspeler case, communication included a multimedia player knowingly designed to provide access to protected works. In The Pirate Bay case, making available an online sharing platform fell within this concept. Earlier this year we also noted that the UK courts granted in favour of the country’s first “live” blocking order, requiring internet service providers to block, in real-time, servers hosting unauthorised live streams of Premier League football matches. The VCAST case marks another victory for right holders.