National legislation which permits, without the copyright holders’ consent, an online recording service for television programmes which are freely accessible in the territory of the Member State, where it is the provider of the service, and not its users, that receives and records the broadcasting signal, is in breach of Article 5(2) under b of the Copyright Directive. Sum of by recording service targeted persons constitutes a 'public'. Original transmissions are made under specific technical conditions and using a different means of transmission. Transmission referred to thus constitute communications to different publics, and each of them must therefore receive consent.
VCAST makes available a cloud video recording system for television programmes broadcast by Italian television organisations. The user selects a programme on the VCAST website, which includes all the programming from television channels covered by the service provided by that company. the system operated by VCASt then picks up the television signal using its own antennas and records the selected programme in the cloud data storage space indicated by the user. This storage space is not provided by VCAST, but is purchased by the user from third-party providers. The audiovisual data recorded are then made available to the user on the conditions specified by the storage service provider. The referring court asks if national legislation permitting these activities is in violation of EU Law.
The Court of Justice of the EU considers that in the present case, the service provider at issue in the main proceeding records programmes broadcast and makes them available to its customers via the Internet. According to the CJEU it is 'evident' that the sum of the persons targeted by that provider constitutes a 'public'. The original transmission on the hand, and that made by service provider at issue on the other, are made under specific technical conditions and using a different means of transmission, which are intended for its own public. The transmissions thus constitute communications to different public, and each of them must therefore receive the consent of the rightholders concerned. According, such a remote recording service cannot fall within the scope of Article 5(2)(b) of the Copyright Directive.
The Court of Justice of the EU answers the questions reffered for a preliminary ruling as follows:
"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."
C-265/16 - ECLI:EU:C:2017:913