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.
 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).]