With the highly anticipated sentence published last November 29, concerning the case brought by VCAST Limited (Vcast) against Reti Televisive Italiane spa ("RTI" - a company of the Mediaset Group), the EU Court of Justice (Case C-265 / 16), made it clear that video recording in the cloud can not be considered legitimate if carried out through the "active" intervention of third parties. As already clarified by the opinion of the Advocate General (already commented here), with the term "cloud computing", we refer to access, through a telecommunication network (Internet), on demand, to shared IT resources where the user it neither buys nor leases concrete IT equipment, but uses, in the form of services, the resources of the infrastructure belonging to a third party. In this specific case, Vcast provides an online recording service for television broadcasts, freely accessible by terrestrial means in Italy, through which the user selects an issue on the Vcast website, in which the entire programming of the television channels appears. included in the said service. Subsequently, the system managed by Vcast captures the television signal through its own antennas and records the time slot selected in the cloud storage space indicated by the user.
With the judgment in question, the Court reiterates that the principle of free movement of information society services from another Member State - as stated in art. 3 of the 2000 / 31 e-commerce Directive) is not applicable to a procedure, such as the one in question, concerning copyright and its exceptions (24 point). The sentence also confirms that the regime of exceptions and limitations to the authorial rights provided for by art. 5 of the 2001 / 29 Directive (InfoSoc) must be interpreted restrictively: "the provisions of a directive which derogate from a general principle enshrined in the directive must be interpreted strictly" (32 point) and that, consequently, the so-called copy exception private law (Article 5, paragraph 2, letter b, Directive cited above), "must not be interpreted as meaning that it requires the copyright owner to tolerate, in addition to this expressly envisaged limitation, violations of his rights that the making of private copies can involve "(34 point). Well, in this specific case, says the Court, Vcast does not limit itself to organizing the reproduction but, in addition, through an "active" intervention, it provides, for the purposes of reproduction, access to the emissions of certain television channels that can be recorded remotely: therefore this service "has a dual function, consisting in ensuring at the same time the reproduction and making available of the works and the material that are the object of the same" (point 38).
On this basis, the obligation to restrict interpretation of the private copying exception implies that the owner of the exclusive rights on the works is not deprived of his right to prohibit or authorize access to the same works of which natural persons intend to make copies private. And this in view of the fact that, by the Court's constant orientation, the right of communication to the public of works must be understood in a broad sense, as including any transmission or retransmission of a work to the public, on wire or wireless, including broadcasting (as clarified by the 23 recital of the InfoSoc Directive). Furthermore, "any transmission or retransmission of a work using a specific technical medium must, in principle, be individually authorized by the author of the work in question" (43). At the same time, in this case, the communication of RTI's emissions by Vcast is aimed at a "new" audience compared to the one initially taken into consideration by the rights holder: all actual or potential customers of Vcast, who moreover they access it through the Internet and therefore, precisely, through different technical instruments compared to those of initial transmission. Therefore, all the conditions exist, in the presence of which the Court's constant jurisprudence recognizes that the owner of exclusive rights has the power to prohibit the use of his works to third parties. The Court therefore concludes by stating that it "precludes national legislation which allows a commercial undertaking to provide individuals with a remote video recording service in the cloud of private copies relating to works protected by copyright, through an IT system, an active intervention in the registration of such copies by said company, in the absence of the consent of the right holder.