Preliminary ruling in case of VCAST Limited v RTI SpA, C-265/16.

The Court of Justice of the European Union (CJEU) has ruled in the case of VCAST Limited v RTI SpA, C-265/16.  The case was referred to the CJEU by the Tribunale di Torino (First Instance Turin Court) after VCAST sought a declaration from the court of the lawfulness of its activities. VCAST – a cloud based recording system, provides its users with the possibility to record any programme broadcast by an Italian terrestrial broadcaster. The recording is then stored in the cloud by VCAST, to be enjoyed whenever the user wants. This brought up the question intepretation of Copyright Directive 2001/29/EC and whether this was an infringement of copyright in the works being broadcasted by RTI. VCAST argued that the recording activities amount to an act of private copying by users, in the same way that a producer of recording hardware supplies the necessary equipment to enable a user to legally make a private copy of copyrighted content, its services simply facilitate its users’ ability to make private copies of copyrighted works in the cloud. On this basis, it argued that it should be entitled to rely on the private copying exemption.The CJEU took the stand that this situation does not fall under the private copying exception, since it consists of making protected works available to the public and thus, falls within communication to the public. The CJEU concluded that ‘Directive 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, in particular Article 5(2)(b) thereof, must be interpreted as precluding national legislation which permits a commercial undertaking to provide private individuals with a cloud service for the remote recording of private copies of works protected by copyright, by means of a computer system, by actively involving itself in the recording, without the rightholder’s consent.’