EU Copyright Law and the
Cloud:
VCAST and the intersection of private
copying and communication to the public
VCAST is an online platform that enables
users to record TV programmes broadcast by the main digital terrestrial
television channels in Italy and store them in the cloud. After signing in to
VCAST’s website, the user can choose the programme or time frame she wishes to
record. VCAST then captures the signal through its own antennae and records the
broadcast in a private cloud storage space provided by a third party, like
Google Drive or Microsoft OneDrive.
In C-265/16, VCAST, the Court of Justice of the European Union (CJEU) was asked whether the private copying exception
covered services like the one offered by VCAST.
Advocate General (AG) Szpunar recommended that the CJEU
consider cloud copying to be generally covered by the exception, but not the specific
service of VCAST. The conclusion by the AG that the exception can apply to
cloud copies was based on a dynamic interpretation of the law and a volitional concept of copier. His disqualification
of VCAST’s service relied on a joint reading of the “lawfulness of source” requirement
in the private copying exception and the criteria for assessing the right of
communication to the public.
For its part, the Court failed to address
the applicability of the exception to cloud services in general. As argued in
greater detail in the article, however, we do not believe that the judgment forecloses
the application of the private copying exception to such services. The
exception should arguably apply to copies made by individual customers of the
service in cases where the work is lawfully
made available or the cloud service is predominantly characterized by the
reproduction function.
The Court focused its analysis on the “dual
functionality” of the VCAST service, which enables both the reproduction and
the making available of protected subject matter. It placed special emphasis on
the fact that VCAST’s provision of access to works triggers the application of
the right of communication to the public. The judgment confirms the growing
importance of this right in determining the legal status of online use of
copyright-protected content. In this case, that determination influenced
whether an exception to a different right (reproduction) applied to the
services of cloud-based providers.
After examining the opinion and the
judgment, we explore some of the implications of this case, namely (i) the “leviability”
of cloud services; (ii) the intersection between the private copying exception
and the right of communication to the public; and (iii) the reconciliation of
the ‘AKM-exception’ with the “specific
technical means” criterion developed in ITV
Broadcasting.
[1] One of the authors of this article acted as agent for the
Portuguese Government in C-265/16, VCAST.
Nonetheless, the views expressed herein are those of the authors and do not
necessarily reflect the official position of the Portuguese Government.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]
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